Ibrahim & Ors, R v [2008] EWCA Crim 880

[2008] EWCA Crim 880

Case No 2007/04146/B5

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT WOOLWICH

MR JUSTICE FULFORD

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/04/2008

Before

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

MR JUSTICE FORBES

MR JUSTICE MACKAY

Between

RCrown

Ibrahim (1)Defendant

Omar (2)Defendant

Osman (aka Hamdi) (3)Defendant

Mohamed (4)Defendant

Mr Nigel Sweeney QC, Mr Max Hill and Ms Alison Morgan for Crown

George Carter-Stephenson QC and Mr A.N. Bajwa for Ibrahim (1)

Michael Wolkind QC and Stephen Vullo for Omar (2)

James Lewis QC and James O’Keeffe for Osman (3)

Mark Milliken Smith QC and Frida Hussain for Mohamed (4)

Hearing Hearing dates : 5 th/6 th March 2008

Judgment

President of the Queen's Bench Division :

[1]On 21st July 2005 London came within a vanishingly short breath of wholesale murder by terrorists. The explanation why the date will not be twinned in the annals of its venerable history with the murderous outrage perpetrated on 7th July 2005 is simple: it was sheer good fortune. The terrorists were Muktar Ibrahim, Yassin Omar, Hussein Osman and Ramzi Mohamed.

[2]Nearly two years later, at Woolwich Crown Court, after a trial lasting several months, before Mr Justice Fulford and a jury, these men were convicted of conspiracy to murder. Each was sentenced to life imprisonment. The recommended minimum term to be served was 40 years. Appropriate allowances were made for time served on remand. The jury was unable to agree verdicts on Manfo Asiedu (aka Sumaila Abubakari) and Adel Yahya. Retrials were ordered. Asiedu subsequently pleaded guilty to conspiracy to cause an explosion likely to endanger life or property. This plea, inconsistent with his defence when he was tried with the four applicants, was accepted by the Crown on entirely pragmatic grounds. A further trial of the issue whether Asiedu was guilty of conspiracy to murder rather than conspiracy to cause an explosion likely to endanger life was not in the public interest. However his change of plea forms part of the grounds of appeal. Asiedu was sentenced to 33 years’ imprisonment and recommended for deportation. Yahya subsequently pleaded guilty to one count of collecting information of a kind likely to be useful to a person preparing an act of terrorism. He was sentenced to 6 years 9 months’ imprisonment.

[3]Mohamed, Ibrahim, Omar and Osman seek leave to appeal against conviction. Mohamed and Osman need time extensions. Mohamed Osman and Asiedu seek leave to appeal against sentence. Asiedu’s application will be heard separately at a later date. Conviction

[4]The prosecution case was entirely straightforward. Towards lunchtime on 21st July 2005, after a telephone call was made from Mohamed’s mobile phone in the Vauxhall/Stockwell area to Osman’s mobile in Dalgarno Gardens, Ibrahim, Omar and Mohamed made their way separately but by an identical route to Stockwell underground station, and from there, they travelled along the public transport system. At the same time, Osman made his way on foot to Westbourne Park Tube Station. Each was carrying a bomb in his rucksack. In the period between 12.30pm and just after 1pm the detonators on each of these bombs were fired. Happily the main charges failed to explode. The bomb carried by Mohamed was detonated on the underground train travelling from Stockwell to The Oval: Omar’s bomb in the underground tunnel just before the train reached Warren Street station: Osman’s bomb in another train near Shepherds Bush station: Ibrahim’s bomb on a bus in Hackney. Asiedu was also carrying a bomb, but he abandoned it in a shrubbery in Little Wormwood Scrubs without activating the detonator. Yahya had left the country several weeks earlier.

[5]Without minimising the personal impact on those who were using the transport system at the time when the bombs were detonated, it is sufficient for present purposes to note that all five men made their escapes. They were then at large for some days. It is virtually impossible to imagine the pressure and concerns which must have been felt by the police investigating teams. Two weeks earlier four bombs had been successfully detonated with the dreadful consequences with which we are familiar, and they were now faced with four more bombs, again in the transport system, which had been detonated, but failed to explode. The bombers involved on 7th July had perished, but the perpetrators of the second intended atrocity were at large, free to repeat their murderous plans, and to do so more effectively. They had to be found and detained, and the immediate objective of the investigation, including interviews of those arrested in connection with these incidents, was directed to public safety.

[6]The defence advanced by and on behalf of these applicants to the jury was that the users of London transport were far from beneficiaries of sheer good fortune. Neither death nor destruction were intended. Flaws were “built in” to the bombs, and their failure to kill and maim was deliberate. These bombs were hoaxes, prepared and carried in the transport system of London to make a potent political point about this country’s involvement in Iraq. If that is all they were, however ill judged as a political demonstration in the immediate aftermath of the attack on 7th July, the applicants were entitled to be acquitted of conspiracy to murder.

[7]It is axiomatic that every defendant, even a defendant alleged to be involved in direct and dangerous violence on the citizens and institutions of this country, is entitled to a fair trial at which his guilt must be proved. This trial was marked with conspicuous fairness, and commanding judicial control by Mr Justice Fulford. The defendants were represented at public expense by leading counsel of distinction and experience, with absolute clarity about their professional responsibilities both to their clients, and to the court. The jury’s difficulty in agreeing verdicts in relation to Asiedu and Yahya demonstrates that they approached the issues with the open-minded fairness and lack of prejudice which is one of the customary characteristics of the jury system. Now that the applicants have been convicted after a fair trial before an impartial tribunal, we are entitled to record, after a lengthy examination of the evidence, that their defences to the charge of conspiracy to murder were ludicrous.

[8]These applicants were not immature adolescents. They were all in their 20s. No witness outside their own number suggested that they were taking a purely intellectual or simply idealistic interest in politics. None supported any suggestion that they were committed to dramatic if ultimately harmless political gestures. To the contrary there was direct evidence that Ibrahim, Omar and Osman held extremist views. Ibrahim spoke of training for Jihad in Afghanistan or Iraq in the summer of 2004. In May 2004 he, Mohamed, Omar, and Osman (together with Yahya) attended a training camp in the Lake District. The inference that their purpose was training for Jihad was clear. At the end of 2004, Ibrahim left this country to go on Jihad, and he returned in March 2005. Two or three of those who had gone with him did not return, and were presumed to have been killed. On one occasion when Ibrahim was about to speak of his experiences, Omar gave an indication that he should not speak in the presence of an outsider. Omar himself tried to persuade the same outsider of the legitimacy of suicide bombings, and made clear that he supported murderous operations carried out by extremists in Britain and the United States, expressing his support for the attack on the Twin Towers in New York as a worthy cause. He proposed to go on Jihad himself.

[9]There was an occasion in early 2005 when, in response to a message from the Imam of a mosque who condemned suicide bombing in Pakistan because it contravened the teachings of the Koran and the Prophet that life should not be taken unless within the law, Omar approached the Imam and shouted at him that he should not “mislead the people”.

[10]In addition to materials directly linked to the construction of bombs, the police were later to find extremist material at 58 Curtis House, Omar’s flat, this included home-made films featuring images of beheadings and other terrorist atrocities. Similar extremist material was discovered at Osman’s address at 40 Blair House, close to Stockwell underground station. Mohamed lived in west London, at an address in Dalgarno Gardens, not far from Little Wormwood Scrubs. During 2005, Ibrahim, Asiedu, Omar and Yahya lived in north London. Omar’s flat at 58 Curtis House was the bomb factory where the majority, if not all the work of constructing the bombs took place and there was ample evidence during the spring and early summer of 2005 which linked Ibrahim, Asiedu and Yahya with Curtis House. A vast body of mobile telephone cell site evidence and CCTV evidence showed that between March and 21st July, these applicants, as well as Asiedu and Yahya, in various combinations, were in frequent contact and that they met on a number of occasions.

[11]The main explosive charge in the devices carried on to the transport system consisted of liquid hydrogen peroxide, concentrated to an intended strength of 70%, mixed in a ratio of 70:30 with chapatti flour. The flour provided fuel which would burn, and the hydrogen peroxide brought oxygen to the mixture which would explode when fired by a detonator. The main explosive charge was placed in a 6.25 litre plastic tub with a lid, and depending on how full it was, would give a weight of main explosive charge in the order of 5-6 kgs or more. The detonator was the primary high explosive triacetone triperoxide (TATP). This is not manufactured commercially but can be made by mixing liquid hydrogen peroxide, acetone and acid. It was packaged by constructing a tube from part of the front cover of an A4 pad or something similar, sealed at one end with masking tape. It appears that the same pad was used by Mohamed to write a farewell letter. The TATP was then put into the tube, and a modified screw-in torch bulb screwed into a small bulb holder which was inserted into the base of the tube and sealed. Two wires were attached to the two holes in the bulb holder and the tube and its contents inserted through a hole made in the bottom of the 6.25 litre container and also sealed in place. The modification to the screw-in bulb involved making a hole in the glass and inserting a small amount of TATP which would be in contact with or close to the wire filament of the bulb. The far ends of the wires were bared and attached to the leg wires of a 9v battery snap connector. The concept was that when the two connectors on the snap connector were brought into contact with the two terminals of a 9v battery, current would pass along the wires to the filament in the bulb. This would heat up and cause the TATP within the glass of the bulb to explode, and in turn the remainder of the TATP in the detonator tube would set off the main charge.

[12]Shrapnel was added to the outside of the plastic tub. A quantity of about 80 screws, tacks, washers or nuts were attached to it. They would increase fragmentation when the bombs exploded, and maximise the possibility of injury to everyone in the vicinity. Each bomb was hidden in a rucksack, modified by the provision of a slit in the back through which the wires from the bulb holder and the snap connector were fed. These were then fed through a slit in the bomber’s clothing, thus enabling him to bring the snap connector into contact with the 9v battery and set off the bomb.

[13]Some years earlier, in 1998, Omar was a student at Enfield College. The Chemistry syllabus was designed to enable students to apply science to the workplace as well as providing them with an understanding of matters such as rates and reactions. The substances used in the lectures included hydrogen peroxide, which, as already explained, was an essential ingredient in the construction of the bombs carried by the applicants on 21st July. In its liquid form hydrogen peroxide is available to the public at a strength of 18% and usually available for purchase in 1 litre bottles and 4 litre containers. The prosecution established that between 28 April and 5 July, 443 litres (that is, virtually 100 gallons) of 18% hydrogen peroxide, in a total of 284 bottles and containers, were purchased from three shops in north London. The details of the numerous shopping expeditions need no narration, but the history of the purchase of the hydrogen peroxide in such vast quantities itself tells something of the commitment of the purchasers. The most frequent purchaser was Asiedu, but on one occasion Asiedu and Omar, and on another Asiedu and Ibrahim were involved together, and the conversations with the shop owners or assistants included requests for hydrogen peroxide at 60-70%, strength or for the highest available percentage of hydrogen peroxide.

[14]The hydrogen peroxide was taken from the shops to Curtis House and boiled in 2 saucepans and a frying pan. The police were later to recover timetables which appeared to set out a rota for Ibrahim, Asiedu and Omar to oversee the boiling process. On the reverse of one document there were handwritten calculations, consistent with being part of the process by which the percentage strength of the concentrated peroxide was calculated. There was also evidence that the strengthened peroxide was mixed with chapatti flour at Curtis House, where an almost empty 2 kg bag of flour was found, together with residue from the main charge in the living room. Pieces of paper in Ibrahim’s handwriting which included notes about an experiment which would enable the concentration of a substance to be determined by metric analysis were also found.

[15]228 bottles were recovered from Curtis House, of which 36 had hand-written markings on them with the figure “70” or “70%”. This was the essential ingredient, and if the hydrogen peroxide had reached the level of concentration shown on the written markings on the bottles, the bombs would have exploded as intended. These hand-written markings on the 36 bottles provided compelling evidence that the manufacturers of the bomb believed that this critical strength had been achieved. Later scientific analysis showed that the actual hydrogen peroxide strength found in the bombs was 58% or a little stronger, mixed in a ratio of about 70:30 with chapatti flour. This is the ideal ratio of peroxide to flour for the purpose of causing an explosion, but scientific testing showed that with an ingredient of 58% hydrogen peroxide strength, the mixture would fail to explode. When tests were carried out with peroxide in the mixture in the region of 70% the main charge exploded every time.

[16]Later police searches at Curtis House revealed a sixth container, which was found in the bins and contained a further quantity of main charge, together with gloves, also contaminated with main charge. There was also what looked like a recipe for making TATP, along with the three necessary ingredients, and traces of TATP were found in two pieces of tubing, and on three gloves, showing that it had been made there. One of the gloves showed Omar’s DNA. Masking tape was recovered, one piece of which showed Ibrahim’s DNA, together with modified bulb holders and bulbs consistent with the fact that the firing system for the detonators used a small amount of TATP which was inserted through a hole in the glass of the bulb and was tested at Curtis House. Osman’s fingerprints were found among the empty bottles and bags at Curtis House. These individual findings are self-explanatory, and given the grounds of appeal, we do not propose to provide an itemised list of all the other materials found either in the bins or inside 58 Curtis House. The items recovered from Dalgarno Gardens included traces of TATP found in the sink plumbing and on a paper from an A4 pad. No front cover of this pad was found, but a front cover of such a pad was used to make the detonator found in the device which Asiedu left at Little Wormwood Scrubs. The result can be summarised very briefly. There was overwhelming evidence which linked all four applicants with the construction of the bombs which were taken by them on to the different sites of the transport system in London and detonated.

[17]If these were hoax bombs we find it hard to conceive why it was necessary for the peroxide to be boiled in order to increase its concentration, or why both Asiedu and Yahya, independently, when buying hydrogen peroxide asked for it to be supplied at 60-70% strength, or the highest available percentage. Equally, it is astonishing to imagine why nearly 100 gallons of hydrogen peroxide was needed unless its purpose was to increase its strength. The handwritten figures “70” or “70%” of 36 bottles made devastating evidence. Each one demonstrated that the manufacturers of the bombs believed that they had in fact achieved the critical concentration necessary to ensure that the bombs exploded. Indeed a significant part of the trial was taken up by the efforts by applicants to explain away this crucial evidence. In very brief summary it was contended that after the concentration in the hydrogen peroxide had been increased, it was then watered down. Moreover it is difficult to understand how any political point, if that was all that was sought to be made, could be improved by the incorporation of shrapnel within the bomb. The shrapnel was intended to cause death and maiming. There could be no other purpose. And if this expedition were intended as a hoax or a political demonstration, there was a remarkable silence from the applicants themselves after they had made their escapes. If their objective was a hoax, half a moment’s attention to the outpouring of the news about the unsuccessful bombings would have demonstrated that their objective had been achieved. Yet no such assertion or claim or explanation was given or offered to the police or the media or the public before any of the applicants was arrested. We shall shortly see what they had to say after arrest.

[18]Mohamed decided that he should leave a letter for his family. It looks as though he wrote it on the same pad as that used for the detonators. It was a farewell letter. The letter came into the possession of the police after 21st July. A witness, Muhedin Ali, called on behalf of Asiedu, described receiving an envelope from Mohamed’s brother which he was told or asked to pass to Mohamed’s partner. He received it on 21st July. Indeed he tried to call Mohamed on numerous occasions during 21st July, and the following day, in relation to this document. In his evidence Mohamed asserted that he wrote the document on 23rd July, and the link between his letter and the pad used for detonators was a pure coincidence. It was written after the death of Mr de Menezes, because Mohamed thought that like Mr de Menezes he would be shot by the British police. The Crown’s case was that given the date on which the document was received by the witness, its contents, and the proved link between the letter and the pad showed that this was a suicide note written by a man who intended to blow himself up on 21st July.

[19]On 23rd July a friend tried to contact both Omar and Asiedu. Accompanied by Omar’s brother-in-law, he met Asiedu on 23rd July. Asiedu swore that neither he nor Omar had anything to do with events on 21st July. Later, in a discussion with family members, it was agreed that Omar’s brother-in-law would go to the police on the following day, and give them the names of the witness who had been trying to contact both Omar and Asiedu, and Asiedu’s name. Not long afterwards Asiedu went to the police. The Crown contended that he did so only because he discovered or believed that his name would be given to them. Asiedu was detained on 26th July, and extensively interviewed between 27th July and 7th August. Over many hours he protested his desire to assist the police: far from attempting to do so, he lied persistently, repeatedly and extensively about his own activities and of those who were later to become his co-defendants. His lies at this stage however did not encompass the suggestion of a hoax.

[20]Omar fled London disguised as a woman. He was arrested at 5.15 on 27 July in Birmingham. He was found standing in a bath, wearing a rucksack with his back towards approaching officers, but watching them over his shoulder. He gave the arresting officers reason to believe that he may be about to detonate a bomb, so they used a Tazer device to disable him. He was formally arrested and cautioned. Ibrahim was arrested in a flat at Dalgarno Gardens at 13.45 on 29 July. Shortly afterwards, at 15.22 Mohamed was arrested at the same flat. The admissibility of the subsequent interviews between these applicants and investigating police officers was challenged before Fulford J. His ruling that they should be admitted provides the first ground for the present applications. We shall return to a detailed consideration of this issue later in the judgment. At this stage we simply record that if the records of the police interviews were properly admitted, they were sufficient, on their own, utterly to undermine the “hoax” defence.

[21]Osman was arrested in Rome on 30th July. He was interviewed in the presence of British police officers. He said that he had been told that the devices were not real explosives, but a hoax to frighten people, to stop the war, to act as a reprisal for reprisals against Muslims. That was the first occasion when, notwithstanding lengthy police interviews, any of these applicants made the assertion that was to represent their collective defence at trial.

[22]In September 2006 the defence statements were served. Mohamed’s statement accepted that he was the “Oval” bomber. He was carrying the device which he was given by Ibrahim. He helped move some of the peroxide used to manufacture the devices, and on 21 July he mixed the peroxide and flour and placed it in a container, and thereafter attached metal washers and screws to the device. However the objective was that the device would make a noise and it was to be left on the Underground in order to attract maximum publicity. Omar’s defence statement involved the proposition that, together with Ibrahim, he devised a plan to construct a device which would appear to be an explosive device, but which would in fact be specifically designed to do no more than make a noise. The statement accepted that Omar was involved in the construction of the devices detonated on 21st July and that he was the Warren Street bomber. Ibrahim’s defence statement accepted that he had detailed knowledge of how the make TATP and concentrated peroxide, and that he had bought most of the ingredients for the bombs. His case was that on 19th July he met with Osman, Omar and Mohamed at 58 Curtis House and that Osman and Mohamed were given the components used to make the devices taken to the transport system on 21st July. According to him the final steps in the constructions of the devices took place at Dalgarno Gardens. The objective was to make a noise but not to cause an explosion because, it was said, “there was insufficient initiator or TATP to activate the main charge”. The activation of his device on the bus was a mistake. It was intended to be set off in the Underground, but there were too many people about for him to make his escape. Osman’s defence statement accepted that he activated the device in the underground train approaching Shepherd’s Bush station. When he did so he believed that the device was not capable of causing harm: it was merely a hoax. He had no knowledge of the potential explosive capabilities of the hydrogen peroxide and flour mixture, he did not believe that the hydrogen peroxide was capable of being used as an explosive, and although he noticed the reference to 18% on the bottles he mixed with flour, that was of no significance to him.

[23]Initial tests conducted on the remains of the devices produced consistent explanations for the failure of the main charges to explode. In relation to the bomb at the Oval, one of the main reasons was that the detonator did not provide enough power for the purpose although, if the hydrogen peroxide had been more concentrated, the detonator would have been adequate. In relation to Warren Street it was suggested that although the detonator was sufficiently powerful to rupture the rucksack in which it was carried, it had not had sufficient power to detonate the main charge mixture. At Shepherds Bush the main charge had failed to detonate possibly because the quantity of TATP did not provide sufficient power. As to the number 26 bus, the detonator failed to provide a great enough stimulus to enable the main charge to detonate. However if the hydrogen peroxide had been more concentrated then the detonator would have been sufficient. The key was believed to be the absence of a sufficient concentration of hydrogen peroxide.

[24]A more detailed analysis was subsequently carried out. It was agreed between the experts for the prosecution and defence that the devices as constructed were not in fact viable. The Crown’s case was that rather than a 70% hydrogen peroxide and 30% flour mix, the hydrogen peroxide actually used achieved a concentration of 58%. Because of this the detonators were not strong enough to detonate the main charge. The alternative to the 70% hydrogen peroxide concentration would have been a booster, such as 15 grams of TATP, then applied to the 58% concentration of hydrogen peroxide. In any event it would have been difficult for those constructing the devices to measure the precise strength of the hydrogen peroxide. However, in relation to the suggestion that this was all an elaborate hoax, the Crown’s expert pointed out that for this purpose no increase in the concentration of the hydrogen peroxide was necessary. At 18%, or simply by inserting a banger in the mix, the same impression of noise and so on would be produced, while at the same time the risk of any explosion would be reduced or extinguished. The Crown’s expert wholly rejected the defence contention, advanced by Ibrahim, that the applicants used diluted hydrogen peroxide at 30% concentration in a 2 to 1 mixture with flour, in a deliberate attempt to ensure that the devices would not work. In fact the defence expert agreed that the hydrogen peroxide was indeed mixed on a 70/30 ratio with flour. Tests carried out with hydrogen peroxide in the 70:30 mixture produced an explosion of the main charge every time.

[25]After the conclusion of the trial, Fulford J made penetrating remarks about the inadequacies of the defence case statements as compared with the details of the defences advanced at trial. Again, the reasons for his criticism do not require detailed attention for present purposes. However some 7-10 days before Dr Black, the Crown’s expert gave evidence, it was postulated by Ibrahim that the hydrogen peroxide was concentrated to 70% and then watered down by tap water to a 35% concentration and then put into a 50/50 mix. This issue had to be addressed. Dr Black took into consideration the published data on the isotope composition of London tap water, and concluded that the suggestion made on Ibrahim’s behalf was not isotopically consistent with his findings. Watered down, the mixture would have a very different isotopic value of oxygen and carbon, completely different to hydrogen peroxide diluted with water. Ibrahim’s explanation therefore was not possible. The Crown’s expert concluded that the hydrogen peroxide had not been diluted by the addition of water. His conclusions were not disputed by Professor Michels, the expert called on behalf of the defendants.

[26]The method of constructing these devices, and their efficacy, indeed all the questions said to arise in this context were left in a detailed meticulous fashion by Fulford J to the jury which had, of course, to examine the stark scientific evidence in the light of the rest of the evidence.

[27]Ibrahim first, then Omar, Asiedu, Mohamed and Yahya gave evidence. Osman did not. He relied on the record of his interviews after arrest. The others gave very long detailed accounts addressing and explaining the evidence against them. The essential nature of the defences has already been summarised, and although more than one feature of the evidence of these applicants may have occasioned surprise in the minds of the jury, no further narrative account is needed.

[28]Two specific events at trial giving rise to grounds of appeal, require attention.(a) In the course of the cross examination of Ibrahim on behalf of Asiedu, it became apparent that Asiedu was alleging that Ibrahim, together with the solicitors acting for him, Mohamed and Omar were involved in a plot to pervert the course of justice. It was alleged that efforts were made to persuade Asiedu to advance the “hoax” defence which did not, so far as he was concerned, represent the true facts. Before Asiedu gave evidence, his leading counsel opened his case to the jury, and impugned the professional behaviour of the solicitor Ms Arani. When he came to address the jury at the end of the case, he repeated these criticisms.

(b) Before the closing speeches were made for the defence, but overnight during the course of the closing speech for the prosecution, Osman made admissions to prison officers that he had been involved in a plot to destroy parts of London, asserting that he had been bullied into making and distributing bombs by Ibrahim.

[29]Fulford J summed up the case to the jury. The most superficial glance reveals that it was the product of characteristic thoroughness and accuracy. Save in relation to minor and wholly unsubstantiated arguments, it is not criticised by counsel on behalf of the applicants. The essential contentions advanced by counsel are directed at the judge’s decisions in relation to the police interviews, the Osman “confession” and the allegations made against Ms Arani. Before addressing them, we must emphasise that which should already be apparent that the narrative of the relevant evidence has been deliberately circumscribed so as to provide a broad sketch sufficient for an understanding of the facts rather than a detailed description of all the evidence given on all sides. We shall provide a more detailed account on the facts relevant to the proposed grounds of appeal as we come to them. The admissibility of interviews (Omar, Ibrahim and Mohamed) The police investigation Context

[30]We have already recorded (at paragraph 5) that it is “virtually impossible to imagine the pressure and concerns which must have been felt by the police investigating teams”. This view is reinforced by the statement of Superintendent McKenna dated 5th October 2006. Among other observations he comments:

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

The facilities available in the custody area at Paddington Green Police Station.

[31]The custody facilities are divided into two, an area for those detained under the Terrorism Acts, and a separate area for those otherwise lawfully detained in custody. If necessary the two areas can be joined together so that the accommodation can be used exclusively for those suspected of terrorism offences. This arrangement was in force at all the relevant times. There were twenty two cells, two lockable detention rooms, a forensic medical examiner’s room, a video link room, a fingerprint room, a rest referral worker’s room, a telephone booth, a drug test room, a solicitor consultation room, a further rectangular room which was a consultation room and four interview rooms with designated tape recording equipment available for use. In addition, two reception rooms normally used for the purposes of booking in suspects were utilised as consultation rooms. Four rooms were therefore available for meetings between detainees and their lawyers. If detainees were permitted the use of a telephone, a plug-in portable telephone was connected in one of the two reception rooms, but although there was a socket in the solicitors’ consultation room, it was disconnected.

[32]These facilities were less generous than they seem. Thus, for example, when Ibrahim and Mohamed’s safety interviews were taking place, 18 individuals suspected of terrorism offences were detained at the police station, and it was imperative, first, that they should have no means of communication with each other, and second, that cross contamination in the course of searches and other appropriate processes undertaken with each suspect should be avoided. The safety interviews

[33]The urgent need to address the understandable fears identified by Mr McKenna involves two distinct considerations: first, the lawful arrest and detention of those believed to be responsible for the terrorist attack, and second, and no less important, immediate public protection from any further violent incidents. Those suspected of terrorist offences, if rightly suspected, are likely to be able to provide assistance to investigating officers performing their responsibilities for public safety. An interview process which, so far as possible, enables the police to protect the public is a necessary imperative. These interviews are variously described as “safety interviews”, or “urgent” or “emergency interviews”. The suspect is interviewed for information which may help the police to protect life and prevent serious damage to property to be obtained. The question whether the results of such interviews should then be used as evidence against the suspects, impinging as it sometimes may on the principles governing protection against self-incrimination, is delicate.

[34]One of the broad submissions to Fulford J was that the safety interviews should be excluded on public policy grounds. The argument, in summary, was that the routine admission of these interviews into evidence against a defendant would make it more likely that suspects would refuse to answer questions relating to public safety issues. Thus the risks to the public as a result of the police remaining in ignorance of material facts would be increased rather than diminished.

[35]Fulford J addressed the argument directly. In his ruling he said:

“The argument presented is that if it became known that co-operation by a suspect to save death, injury or serious damage to property could lead to the introduction of his statements – made for that purpose – into the trial, that would operate as a material disincentive to future suspects to assist in this way. I am told by Mr Sweeney QC that as far as the relevant officials are concerned, no such policy considerations exist. For my part, it is for the police alone in these circumstances to decide whether or not to offer a suspect an undertaking that anything they say will not be used in evidence. If they wish to offer that high level of protection to the interviewee, that is their choice. Here they cautioned each of the three defendants that anything they said may be given in evidence and there are no public policy reasons for preventing the prosecution from giving this evidence to the jury.”

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

[37]The safety interviews which took place with these three applicants did not reveal anything which led or should have or could have led the police to take further steps to achieve or provide additional public protection. None of the applicants said anything which directly incriminated them, or involved any confession to involvement in or even remote knowledge of the conspiracy to murder on 21st July, or indeed any other serious crime. Nevertheless, the interviews provided important evidence against each of them, not because they told the truth and revealed knowledge of or involvement in terrorist activity, but because in their different ways the applicants made a number of demonstrably untrue assertions without suggesting the defences later advanced at trial. In that sense, these interviews, amounting as they did, to denials of involvement in any conspiracy to murder, produced material on which the Crown proposed to rely to undermine the credibility of the defendants who sought to advance the “hoax” defences. Although it is clear that owing to police error, incorrect cautions were administered to them before they told these lies, each applicant was warned, and as Fulford J found, appreciated, that the answers given in the safety interviews might be used in evidence against them. So they were under no illusions. They did not purport to incriminate themselves at all. They chose to lie. On any view that was an important consideration in the exercise of Fulford J’s discretion.

[38]The admissibility of the safety interviews was challenged on behalf of Omar, Ibrahim and Mohamed on the basis that the circumstances in which they took place contravened fundamental rights, and that they should have been in any event excluded in accordance with section 78 of PACE. At the risk of appearing to attach disproportionate importance to this particular feature of the evidence, but given the nature of this crime and the circumstances in which the safety interviews took place, we shall endeavour to explain the facts leading to Fulford J’s conclusion in some detail. The legislative structure

[39]The statutory provisions in force at the date of these interviews are found in paragraphs 7-9 of schedule 8 of the Terrorism Act 2000, Code C of PACE (now replaced by Code H of PACE) and Annex C to Code C. Code C was not issued in the context of the Terrorism Act 2000: it was issued under the Police and Criminal Evidence Act 1984. Schedule 14, paragraph 6 of the Terrorism Act 2000 envisaged a new code to apply to regulate the position of those detained on suspicion of terrorism, but it was not until July 2006 that Code H was introduced to address the problems of those detained under the 2000 Act. This judgment addresses the provisions in force in July 2005.

[40]Paragraph 7 (1) of schedule 8 provides:- “Subject to paragraphs 8 and 9, a person detained under schedule 7 or section 41 at a police station…shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time.” Paragraph 8 provides:

“(1) Subject to sub-paragraph (2), an officer of at least the rank of superintendent may authorise a delay – (a) in informing the person named by a detained person under paragraph 6; (b) in permitting a detained person to consult a solicitor under paragraph 7… (3) Subject to sub-paragraph (5), an officer may give an authorisation under sub-paragraph (1) only if he has reasonable grounds for believing (a) in the case of an authorisation under sub-paragraph (1)(a), that informing the named person of the detained persons detention will have any of the consequences specified in sub-paragraph (4) or (b) in the case of an authorisation under sub-paragraph (1)(b), that the exercise of the right under paragraph 7 at the time when the detained person desires to exercise it, will have any of the consequences specified in sub-paragraph (4). (4) Those consequences are – (a) interference with or harm to evidence of a serious… offence (b) interference with or physical injury to any person, (c) the alerting of persons who are suspected of having committed a serious …offence but who have not been arrested for it (d) the hindering of the recovery of property obtained as a result of a serious …offence… (e) interference with the gathering of information about the commission, preparation or instigation of acts of terrorism, (f) the alerting of a person thereby making it more difficult to prevent an act of terrorism, and (g) the alerting of a person and thereby making it more difficult to secure a person’s apprehension, prosecution or conviction in connection with the commission, preparation or instigation of an act of terrorism.” (a) in informing the person named by a detained person under paragraph 6; (b) in permitting a detained person to consult a solicitor under paragraph 7… (a) in the case of an authorisation under sub-paragraph (1)(a), that informing the named person of the detained persons detention will have any of the consequences specified in sub-paragraph (4) or (b) in the case of an authorisation under sub-paragraph (1)(b), that the exercise of the right under paragraph 7 at the time when the detained person desires to exercise it, will have any of the consequences specified in sub-paragraph (4). (a) interference with or harm to evidence of a serious… offence (b) interference with or physical injury to any person, (c) the alerting of persons who are suspected of having committed a serious …offence but who have not been arrested for it (d) the hindering of the recovery of property obtained as a result of a serious …offence… (e) interference with the gathering of information about the commission, preparation or instigation of acts of terrorism, (f) the alerting of a person thereby making it more difficult to prevent an act of terrorism, and (g) the alerting of a person and thereby making it more difficult to secure a person’s apprehension, prosecution or conviction in connection with the commission, preparation or instigation of an act of terrorism.”

[41]Code C: 5 of PACE addresses the right of a suspect not to be held incommunicado. The detainee may, on request “have one person known to them or likely to take an interest in their welfare informed at public expense of their whereabouts as soon as practicable” (C:5.1). That process may be delayed “only in accordance with Annex B…(C:5.2). C:5.6 allows the detainee “to telephone one person for a reasonable time…”. This is a privilege which may be “denied or delayed” if an officer of appropriate rank concludes that such a telephone call may result in any of the consequences in: (a)… (b) Annex B paragraphs 8 and 9 and the person is detained under the Terrorism Act 2000 schedule 7 or section 41”. Code 5 E provides that the telephone call referred to in C 5.6 is “in addition to any communication under paragraph C 5.1”

[42]C:6 applies to the detainee’s right to legal advice. The starting point is that unless Annex B applies, the detainee must be informed that he may “at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available from the duty solicitor”.

[43]C: 6.6 provides:

“A detainee who wants legal advice may not be interviewed or continue to be interviewed until they have received such advice unless: (a) Annex B applies, when the restriction on drawing adverse inferences from silence in Annex C will apply because the detainee is not allowed an opportunity to consult a solicitor: or… ” (a) Annex B applies, when the restriction on drawing adverse inferences from silence in Annex C will apply because the detainee is not allowed an opportunity to consult a solicitor: or… ”

[44]Annex C to Code C deals with “restriction on drawing adverse inferences from silence and terms of the caution when the restriction applies”. For immediate purposes the consequence is that the “old style” caution should be given.

[45]Code C: 6.6 (b) continues by enabling an officer of appropriate rank to order that a detainee may be interviewed or continue to be interviewed before he has received legal advice where he has reasonable grounds to believe that the delay consequent on allowing access to legal advice may :

“ (i) …… might: • lead to interference with, or harm to, evidence connected with an office; • lead to interference with, or physical harm to, other people; • lead to serious loss of, or damage to, property; • lead to alerting other people suspected of having committed an offence but not yet arrested for it; • hinder the recovery of property obtained in consequence of the commission of an offence”

. These conditions reflect the provision in Annex B in relation to persons detained under the Terrorism Act 2000, although Annex B itself is in wider terms and extends to the situation where the officer in question has reasonable grounds for believing that a delay to allow access to legal advice may: “(iv) lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or (v) by alerting any person, making it more difficult to prevent an act of terrorism or secure the apprehension, prosecution or conviction of any person in connection with the commission preparation or instigation of an act of terrorism.” (Annex B C:8) • lead to interference with, or harm to, evidence connected with an office; • lead to interference with, or physical harm to, other people; • lead to serious loss of, or damage to, property; • lead to alerting other people suspected of having committed an offence but not yet arrested for it; • hinder the recovery of property obtained in consequence of the commission of an offence”.

[46]Returning to Code C:6.6(b):

“(ii) When a solicitor, including a duty solicitor, has been contacted and has agreed to attend, awaiting their arrival would cause unreasonable delay to the process of investigation; (Note: in these cases the restriction on drawing adverse inferences from silences in Annex C will apply because the detainee was not allowed an opportunity to consult a solicitor);… C:6.7 – if paragraph 6.6 (b) (i) applies, once sufficient information has been obtained to avert the risk, questioning must cease until the detainee has received legal advice unless paragraph 6.6(a),(b)(ii), (c) or (d) applies. C:6.8 – a detainee who has been permitted to consult a solicitor shall be entitled on request to have the solicitor present when they are interviewed unless one of the exceptions in paragraph 6.6 applies…” (Note: in these cases the restriction on drawing adverse inferences from silences in Annex C will apply because the detainee was not allowed an opportunity to consult a solicitor);… C:6.7 – if paragraph 6.6 (b) (i) applies, once sufficient information has been obtained to avert the risk, questioning must cease until the detainee has received legal advice unless paragraph 6.6(a),(b)(ii), (c) or (d) applies. C:6.8 – a detainee who has been permitted to consult a solicitor shall be entitled on request to have the solicitor present when they are interviewed unless one of the exceptions in paragraph 6.6 applies…”

[47]In Notes for Guidance C:6A provides:

“In considering if paragraph 6.6(b) applies the officer should, if practicable, ask the solicitor for an estimate of how long it will take to come to the station and relate this to the time detention is permitted, the time of day…and the requirements of other investigations. If the solicitor is on their way or is to set off immediately, it will not normally be appropriate to begin an interview before they arrive. If it appears necessary to begin an interview before the solicitor’s arrival, they should be given an indication of how long the police would be able to wait before 6.6(b) applies so there is an opportunity to make arrangements fro someone else to provide legal advice. ”

[48]Annex C to Code C states:

“C:1 – the Criminal Justice and Public Order Act 1994, sections 34, 36 and 37 as amended by the Youth Justice and Criminal Evidence Act 1999 section 58 describes the condition under which adverse inferences may be drawn from a persons failure or refusal to say anything about their involvement in the offence when interviewed…these provisions are subject to an overriding restriction on the ability of a court or jury to draw adverse inferences from a person’s silence. This restriction applies: a) to any detainee at a police station, …who before being interviewed…has: i) asked for legal advice.. ii) not been allowed an opportunity to consult a solicitor, including the duty solicitor… C:2 – when a requirement to caution arises at a time when the restriction on drawing adverse inferences from silence applies, the caution shall be: “You do not have to say anything, but anything you do say may be given in evidence”.” i) asked for legal advice.. ii) not been allowed an opportunity to consult a solicitor, including the duty solicitor… “You do not have to say anything, but anything you do say may be given in evidence”.”

[49]Annex B to Code C at C:15 provides:

“When a suspect detained at a police station is interviewed during any period for which access to legal advice has been delayed under this annex, the court or a jury may not draw any adverse inferences from their silence”

. Fulford J’s decision

[50]Fulford J’s ruling occupied 171 paragraphs, covering 40 closely typed pages. Naturally, as we shall see, he dealt with the case of each defendant in its own fact specific context. Subject to the submissions now advanced by Mr Michael Wolkind QC on behalf of Omar, he addressed each and every important issue raised with him, and indeed a number of fairly peripheral questions as well. In short, the exercise of his discretion was fully informed, and defendant specific.

[51]Fulford J put the interviews of each defendant into a broader context, and his reasoning merits attention. He addressed the question whether the applicants were confronted with “irreconcilable propositions when they were asked to participate in these interviews” and the contention that as they were offered the inducement of assisting the police to address the safety of the public, it would be “unfair now to use their answers in evidence against them”. We can do no better than quote his response. “Those submissions clearly raise issues that merit careful analysis. First, were the statements irreconcilable and contradictory? In my judgment they were not. The defendants were confronted with a stark but clear choice: either they could each help the police in the knowledge that what they said may be utilised against them, or they could protect themselves and remain silent. Furthermore, they were warned that failure to reveal elements of their defence later relied on at trial may count against them. What is clear beyond doubt is that the defendants were not misled or deceived as to the underlying purpose of the interviews, the possible consequences of answering questions or the potential risks of not revealing elements of their defence: these matters were explained in straightforward language and it has not been suggested that any defendant failed to understand what was said to them or that they have any difficulties in understanding or speaking the English language. The change in the words of the caution as regard Ibrahim in interview C appears to have passed-by unnoticed; certainly, nothing has been advanced to support an argument that it caused confusion or pressure. Centrally, they were told that anything they said may be used in evidence against them. Given these question arose directly out of their admitted activities in constructing, deploying and detonating these devices, the defendants were not faced with an unfair dilemma – it was for them to decide at this stage in these unfolding events whether their personal interests (and including the right to silence) or the public interest took priority. Second, the defence they each chose not to reveal at that stage – the truth, as they maintain in the defence statements – was directly relevant to the public safety issues and was easy to describe. It did not involve any detailed understanding of the criminal law or an explanation of a complicated factual background. Indeed, one word would have gone a very long way to encapsulate their respective cases and explain the outstanding risks to the public: hoax. Sometimes it is necessary for a suspect to have the assistance of a lawyer before he can understand and describe a complicated defence, but that was not the case here. Third, the defendants might have a more credible position on this issue if they had answered questions in ways that were at least arguably designed to assist the police and which, as a result, incriminated them. However, it is common ground that the defendants either lied or failed to reveal what they knew during these safety interviews: rather than incriminate themselves, they offered false exculpatory explanations. Having been warned that anything they said may be used in evidence, they chose not to tell the police the truth. Fourth, the invitation to cooperate in the process of protecting the public was not an impermissible inducement. As set out above, interviews of this kind, in the right circumstances, have an express statutory basis, in the sense that access to lawyers, for good cause, can be delayed. Fifth, the new-style caution did not, on the material introduced in the voir dire, pressurise these defendants into providing any element of their various defences, and they cannot validly argue they were induced impermissibly into revealing their “true” cases.”

[52]Fulford J then addressed the perceived threat to London in July 2005. He described it as “wholly exceptional” and “since the end of the Second World War….without precedent in our national life”. He linked events on 7th and 21st July and continued “when the devices detonated on 21 July the police had no means of knowing whether yet more were destined to be set off in the near future: and a high priority for those charged with protecting the public was to find and defuse any other bombs and to arrest outstanding conspirators”. In the absence of any evidence from the defendants at the voire dire, but in the light of their defence case statements, it was “a fair inference at this stage that it was contemplated by these defendants that they would cause a considerable strain to, or break down of, the normal and proper administrative procedures in multiple fields (e.g. within the Metropolitan Police, the Anti-Terrorist Branch, Transport for London, the Fire Brigade, the London Ambulance Service etc) thereby maximising the effect of their terrorist event. This conclusion applies equally whether these devices were intended to kill and maim or to be hoax devices, which only partially detonated”.

[53]Fulford J’s observations were not criticised in argument before us, because as he explained, these events provided part of the factual background in which he was called to exercise his discretion. As he put it “although the defendants would not have envisaged the particular consequences of their conspiracy that arose during their detention (such as the resort by the police to safety interviews, the delays in providing access to lawyers and the mistakes as to the correct caution, those events were a direct and unsurprising result of the defendants’ deliberate actions.” The judge considered it appropriate to take all these matters into account when exercising his discretion under section 78. We respectfully endorse his view.

[54]The broad conclusions are lengthy, but a summary would not sufficiently do justice to them, or demonstrate the care with which the judge approached these issues.

[55]At paragraph 165, Fulford J explained :

“By way of summary, therefore, these accused argue that the admission of this evidence is unfair. It is the position that they, along with their co-accused, by their own admission caused the wholly exceptional and stressful environment within which the police had to operate, that led to the need to hold safety interviews, and the exclusion of lawyers instructed to attend Paddington Green in order to represent them. Furthermore, instead of assisting the police in understanding the extent of the risk (or lack of it) that existed as regards the safety of the public, it is admitted they availed themselves of this opportunity to tell a series of highly misleading, exculpatory lies. It is not suggested the three defendants failed to understand they had a right to remain silent (notwithstanding the incorrect use of the new-style caution), and it is not suggested that they were unfit to participate in these interviews. Save as regards Ibrahim, where there was a wrongful (although I find unintentional) denial of access to legal advice by telephone, along with the use of the wrong caution, there were no breaches of the Code of Practice or other relevant provisions (save, of course, for the breach of the Code as regards the new-style caution [113]).”

[56]At paragraph 167, he explained:

“The approach I have adopted to the exercise of my discretion is, therefore, as follows: a) I have given full weight to the principle that access to legal advice before and during interrogation is one of the most fundamental rights of the citizen, and should only be denied on reasonable grounds that arise out of the circumstances of the particular case. Moreover, in assessing the reasons for delaying access to lawyers, I have borne in mind the court should 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, they cannot be expected to anticipate and to make provision for every kind of exceptional eventuality, and particularly if the chaotic event in question has not occurred before. b) In assessing what is fair, if the failure to provide access to lawyers was because - it was necessary to conduct safety interviews (and with Ibrahim the failure to provide access to advice by telephone was in a real sense unintentional), and - the state of affairs that led to the denial of legal advice was the direct result of the deliberate actions of the detainees, who wished to create general chaos in the Capital (although they are unlikely to have foreseen this particular consequence, that safety interviews under the new-style caution would be conducted without the benefit of legal advice) those are matters which a court is fully entitled to weigh along with the other relevant factors in determining admissibility, even if the code of practice was breached as regards the caution. c) The failure to allow Ibrahim to speak to the duty solicitor by telephone did not involve a significant denial of his rights. d) In this case the environment in which the three defendants were held was not in any true sense coercive: indeed, the opposite was the case. Their dietary and religious needs were catered for punctiliously. Their fitness to be interviewed was carefully and appropriately assessed. It is not suggested that the questioning was oppressive or unfair, by virtue of the matters raised and the length, timing or tone of the questioning. Access to lawyers was denied for a relatively short period and in any event for no longer than was necessary: Omar for a little over 8 hours, Ibrahim for 7½ hours and Mohamed for 4 hours. e) Although the new-style caution (viz. that failure to mention matters later relied on might lead to the drawing of adverse inferences) which was used incorrectly in this case involves a level of indirect compulsion, that of itself is not decisive. The choice for the defendants was, on these facts, an easy one to comprehend: on their case they had a straight forward decision to make between revealing a “truth” which was easy to describe (that it was all a hoax and in consequence there was no public danger) or remaining silent. They were not “induced” by the caution to incriminating themselves; instead they told deliberate, exculpatory lies. f) What these defendants said to the police during these safety interviews is potentially of high relevance to the central question raised in this trial: whether the defences they now individually advance – that of “hoax” attacks – are possibly true. This is not, therefore, marginal or unimportant evidence but instead it may provide the jury with considerable insight into the true intentions of the defendants. So long as it is fair to each defendant to introduce these safety interviews in his case, bearing in mind Lord Steyn’s “triangulation of interests” it is strongly in the public interest for this material to form part of the evidence in this trial.” a) I have given full weight to the principle that access to legal advice before and during interrogation is one of the most fundamental rights of the citizen, and should only be denied on reasonable grounds that arise out of the circumstances of the particular case. Moreover, in assessing the reasons for delaying access to lawyers, I have borne in mind the court should 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, they cannot be expected to anticipate and to make provision for every kind of exceptional eventuality, and particularly if the chaotic event in question has not occurred before. b) In assessing what is fair, if the failure to provide access to lawyers was because - it was necessary to conduct safety interviews (and with Ibrahim the failure to provide access to advice by telephone was in a real sense unintentional), and - the state of affairs that led to the denial of legal advice was the direct result of the deliberate actions of the detainees, who wished to create general chaos in the Capital (although they are unlikely to have foreseen this particular consequence, that safety interviews under the new-style caution would be conducted without the benefit of legal advice) those are matters which a court is fully entitled to weigh along with the other relevant factors in determining admissibility, even if the code of practice was breached as regards the caution. c) The failure to allow Ibrahim to speak to the duty solicitor by telephone did not involve a significant denial of his rights. d) In this case the environment in which the three defendants were held was not in any true sense coercive: indeed, the opposite was the case. Their dietary and religious needs were catered for punctiliously. Their fitness to be interviewed was carefully and appropriately assessed. It is not suggested that the questioning was oppressive or unfair, by virtue of the matters raised and the length, timing or tone of the questioning. Access to lawyers was denied for a relatively short period and in any event for no longer than was necessary: Omar for a little over 8 hours, Ibrahim for 7½ hours and Mohamed for 4 hours. e) Although the new-style caution (viz. that failure to mention matters later relied on might lead to the drawing of adverse inferences) which was used incorrectly in this case involves a level of indirect compulsion, that of itself is not decisive. The choice for the defendants was, on these facts, an easy one to comprehend: on their case they had a straight forward decision to make between revealing a “truth” which was easy to describe (that it was all a hoax and in consequence there was no public danger) or remaining silent. They were not “induced” by the caution to incriminating themselves; instead they told deliberate, exculpatory lies. f) What these defendants said to the police during these safety interviews is potentially of high relevance to the central question raised in this trial: whether the defences they now individually advance – that of “hoax” attacks – are possibly true. This is not, therefore, marginal or unimportant evidence but instead it may provide the jury with considerable insight into the true intentions of the defendants. So long as it is fair to each defendant to introduce these safety interviews in his case, bearing in mind Lord Steyn’s “triangulation of interests” it is strongly in the public interest for this material to form part of the evidence in this trial.”

[57]At paragraph 168 Fulford J explained why he did not consider “there has been a material infringement of the right on the part of any of these accused to exercise his defence rights:

“During these interviews, none of the defendants needed the presence of a lawyer as a counterweight to anything adverse that happened during the safety interviews, and the use of the wrong caution did not, on these facts, undermine the protection against self-incrimination. Moreover, there is nothing unfair in admitting this evidence, given the circumstances I have analysed in detail above. Without hesitation it is my decision that these interviews in their entirety are admissible, having applied the particular wording of s. 78 Police and Criminal Evidence Act 1984 and having weighed the requirements of Article 6 of the European Convention on Human Rights. However, it will be necessary to give the jury carefully crafted directions on how they should approach these interviews, and those directions I shall discuss with counsel in due course.”

Later, that is precisely what he did. Omar’s safety interviews

Omar’s safety interviews

[58]Omar was the first of the applicants to be arrested. After he stopped struggling, he was formally arrested and cautioned using what was described at trial as the “new style caution”. In short he was told that he did not have to answer any questions but that what he said may be given in evidence. This was accompanied by the usual warning that inferences adverse to him might be drawn from his silence if he failed to mention matters which were later relied on in his own defence at trial. This caution was repeated when he was removed from the address in Birmingham. He was put into a car and taken to London.

[59]On the way a conversation took place between him and the officers responsible for his custody. There was no argument as to its admissibility. Omar was asked whether there was anything at the address where he had been arrested, or in the rucksack in his possession at the time of his arrest, or anywhere else which would cause harm to anyone. His reply was “No. I do not know what I was doing. I was at the station when the bomb scare went off”. He was asked “What bomb scare?” to which he replied that during the previous week he went to Victoria, and then to another station on the Victoria line, but he did not know the name. He was asked where he lived and whether there was any need to worry about anything which might be there. He said he lived at 58 Curtis House on his own. He then asked what was going to happen to him. He was told that he would be taken to Paddington Green Police Station. He was told that he would be entitled to legal representation. He volunteered “I was on that tube at the time of the explosions. I did not know it was going to go off. I did not want to hurt anyone. No one has ever done anything for me. The foster carers were bad to me. Even my education was bad. I did not make the explosives. I was told to collect it. I went to an alleyway near a shop and collected the rucksacks”. This account and these explanations were inconsistent with the defence case statement which was subsequently advanced on his behalf.

[60]Omar arrived at the police station at 7.20. At 7.50 he asked that the duty solicitor should be contacted. He was told that he was entitled to consult with a lawyer but that this right could be delayed for up to 48 hours if so authorised by an officer of appropriate rank. At 7.55 Superintendent MacBrayne ordered that he should be held incommunicado. Shortly afterwards Superintendent McKenna directed that a safety interview should be conducted. The grounds for his decision were recorded in writing.

[61]At 8.50 Omar fell to the floor. He felt faint, but remained conscious. He was seen by a doctor at 8.52. The doctor certified that he was fit to be interviewed and detained. At 8.56, following a direction from Mr McKenna that a safety interview should be conducted, the custody officer was told that it should take place as soon as possible. At 9.00 a very short interview, focused on the contents of the bag which Omar had thrown away on arrest, took place.

[62]At 9.15 the duty solicitor was contacted by the custody officer at Omar’s request. The solicitor was identified as Paul Graham. At 9.38 the custody record showed that he was told that he would be contacted after the booking in procedure was complete. At 10.06 Omar sought access to a solicitor, and repeated his request at 10.14. He was told by the custody officer that this would be arranged as soon as the booking in process was finished. The process, and forensic tests, including taking samples, were completed at about this time. It was not suggested that the processes had been deliberately or artificially extended.

[63]At 10.24 the custody officer was told that Mr McKenna had authorised a further “emergency” interview. The ground was “a genuine risk to both police officers and members of the public”. This interview began at 10.25. It concluded at 11.11. The need for this questioning was summarised:

“ …comprehensively to exhaust the potential of obtaining information which could lead to averting the potential harm to the public, or averting any further attack by Omar or any accomplice. ”

That reflected a summary of Mr McKenna’s full reasons which were attached to the custody record: “I have considered the need to conduct a further Urgent interview with Omar. I authorise an interview with Yassin Hassan Omar presently detained at Paddington Police Station. He has not been given the right of access to legal advice on the following grounds: Reasonable grounds for believing that delaying such an interview would involve an immediate risk of harm to persons or serious loss of, or damage to, property; Will lead to the alerting of other people suspecting of having committed such an offence but not yet arrested for it, and by alerting any person, will make it more difficult – i) to prevent an act of terrorism, OR ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism. The above beliefs are based on the following: Omar is suspected of detonating an improvised explosive device on a … train on Thursday 21 July 2005; this was part of an organised simultaneous attack that involved at least three other persons as yet to (be) arrested. The identity of one of these three persons has yet to be established and the whereabouts of three is yet to be established. Omar’s premises at 58 Curtis House is believed to have been used to manufacture the improvised explosive material. My suspicion is that Omar and his three (at least) accomplices were attempting to carry out a ‘suicide attack’ killing themselves and any other persons in their immediate vicinity. The other parties to this attack are yet to be apprehended and it is imperative to preserve and secure public safety that they are identified, located and detained prior to attempting to repeat the events of 21 July. The immediate whereabouts of these other persons, the presence of other improvised explosive devices and the identities and whereabouts of ANY other persons involved in the commission, preparation or instigation of acts of terrorism connected to Omar MUST be established to prevent any loss of life or serious damage to property. Awaiting the arrival of a solicitor and permitting any pre-interview consultation before any attempt to establish the above facts WILL cause unnecessary delay to this interview process. I have considered the requirements of PACE and the associated Codes of practice and believe that this course of action is necessary and proportionate. ANY interview with Omar under this authorisation must cease when the risk of life and public safety is averted. In granting this authorisation I have considered Omar’s rights under Article 6 HRA and believe that this authorisation is both proportionate and necessary (for) ensuring the Article 2 rights of the public in general.” i) to prevent an act of terrorism, OR ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism.

[64]At the start of the interview Omar was told that he didn’t “have to say anything” but that what he said “may be given in evidence”. Omar appeared to understand and the officer continued “however I want us to talk because there are people’s lives at risk”. Omar indicated that he understood.

[65]A further interview began at 11.26 and concluded at 12.11. Again Omar was told “you don’t have to say anything but what you are saying may be given in evidence. You understand that?”, to which Omar replied “Yes”. The officer continued “but from what you are saying is that you want to tell us. You want to help us clear up, clear this up, you want to tell us who is out there trying to kill people yeah?”. Omar replied that he was trying to tell them as much as he knew. He then referred to his “big headache” and a little later, asked to confront the evidence against him, he referred to his “head”, but there was no other indication of any medical reason why he should be unable to participate in the interview. At 12.13 or 12.16 Omar saw a doctor and another medical examiner. Although he complained that he had ringing in his ears and a mild headache, no abnormality was found and Omar said that he did not need painkillers. He was certified fit to be detained.

[66]At 12.19 Mr Graham was contacted. He was told that safety interviews were taking place. At 12.23 the doctor indicated that he had no concerns about Omar’s head injury. The next interview began at 12.31 and concluded at 13.17. It began with the interviewing officer saying…”you don’t have to say anything but it may harm your defence if you fail to mention when questioned – my questions – something which you later rely on in court. What that means is that you don’t have to say anything but what you say could be said at court. But at the end of the day we are trying to catch these people that we discussed, yeah. You understand that?”, and Omar replied that he understood very well. It was also intimated to him at an early stage in the interview that he could hope for a substantial reduction in sentence if he assisted the police by giving them information which would help to save lives. Later, when shown incriminating CCTV evidence he said “you know what I feel like, I feel like I should’ve just waited for my lawyer, my solicitor…I thought, no look like you said to me don’t wait for the solicitor there’s lives to be saved here…give us the information. I have given you as far as I know. No I can’t give you any more. I don’t know any more. If I know any more you have asked me for the address, yes, I’ve told you. I think, even I was trying to tell you; you wouldn’t even let me finish”.

[67]At 13.35 Omar was given a hot meal and something to drink, and a further safety interview began at the same time. It finished at 14.20. At the beginning he was told “you don’t have to say anything, but what you say may be given in evidence. You understand what we said that about this could be sort of read out in court etc”, and he replied “Yes”, and that he was “co-operating” and “trying to help..”. He repeated that he was trying to help, trying to stop dangerous people, trying to provide information so that nothing more would happen, and that if he was “bad” he would have sought a lawyer. At this interview Omar made clear that he knew that he had an option whether to co-operate, or not, and asserted that he was co-operating because he had nothing to hide.

[68]At 14.15 Mr Graham was contacted by the custody officer. He indicated that he would arrive at the police station at 15.30. At 14.50 Omar’s detention was reviewed. He was told that he would remain incommunicado, but that he would be able to speak to his solicitor when he arrived. At 15.35 a consultant from St Mary’s Hospital, and a medical practitioner saw Omar. He was fit to be detained and further interviewed. At 15.30 Mr Graham arrived in the custody suite. He was allowed to read the custody record.

[69]At 16.08 Omar was allowed a consultation with Mr Graham. At 16.15 that consultation was interrupted for a short safety interview, which began at 16.19 and concluded at 16.21. Mr Graham was present throughout. It came to an end because Omar said that he was not feeling well. It began with the officer administering the caution “…you do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”.

[70]This analysis shows that two cautions were used, one, that Omar was not obliged to say anything but that what he did say would be given in evidence, and the second, that he was not obliged to say anything, but that his defence might be harmed if he failed to answer questions. These were described at trial as the “old style” caution, and the “new style” caution. (a reference to section 34 of the Criminal Justice and Public Order Act 1994)

[71]The interviews covered 256 pages. It was conceded for the purpose of the argument on admissibility, and it was not otherwise suggested before us, that from start to finish Omar lied to the police during these interviews. He certainly said nothing which might have assisted the police in their attempt to secure public safety. We shall identify a few of his lies. He pretended that he did not recognise his co-accused, or misidentified them, or gave untruthful accounts of his knowledge of them. He claimed that he was travelling on the public transport system because he was going home, and getting married that day. He denied carrying any wires which connected him to his device, and he maintained that he had no idea that it was a bomb until it suddenly exploded. The hydrogen peroxide was needed for painting or decorating. The others involved in the incidents were probably not worried about being arrested because they had all tried to kill themselves. In short, as

the judge described it in his ruling:

“He volunteered a very large amount of misleading information. Over and again he protested that he was telling the truth and that he had told the police all that he knew. He did not incriminate himself, but invented fictitious exculpatory lies”

[72]At trial it was conceded on Omar’s behalf, that although the safety interviews were indeed long interviews, the police had not pursued their objective of identifying potential public dangers in a way which was excessive or that the questioning, or length of interviews, were unfair and that the questions were focussed on public safety issues.

[73]It is perhaps important to bear in mind that Omar was the first of these applicants to be arrested. What, if anything, he might have to say was of absolutely crucial importance to the stark public safety issues which confronted the police.

[74]On the voire dire the Crown was not required to call evidence. The entire process, and in particular the content of his safety interviews were taken as read: so, too, was the evidence of Mr McKenna and the relevant evidence from the custody records. Omar himself did not give evidence. Moreover it was expressly accepted that the decision to hold a safety interview before Omar was granted access to a lawyer was a valid decision under schedule 8 of the Terrorism Act 2000. It was conceded that the interviews were conducted fairly and moderately, and that they were neither coercive nor oppressive.

[75]An attack on the safety interviews which questioned either the reasons for the decision to hold Omar incommunicado or the decision that access to legal advice should be postponed would have entitled the prosecution to call evidence to explain the reasons for the police belief that the bomb carried by Omar, as well as all the other bombs, were truly terrorist in nature. For good and understandable forensic reasons, these issues were not raised at trial. Instead, the essential submission on behalf of Omar on the voire dire was that any interview which followed denial of access to a solicitor was inadmissible, and that telling lies in the course of a safety interview should be equated with a failure to mention facts, thus bringing the limitation in section 34(2)(A) of the 1994 Act into operation. In any event the mistaken use of the “new style” caution failed to give adequate protection to Omar because, properly understood, it would have led him to believe that if he chose not to answer questions his silence could not be used against him.

[76]Fulford J dealt with this submission as follows: ““Failure (at this juncture) to reveal facts relied in his defence cannot count against the interviewee whatever his defence is at trial, but anything he says, and including any lies which he tells, can form part of the case against him, so long as it is fair to introduce that evidence”. (An obvious reference to s78 of PACE).

[77]Section 34 of the Criminal Justice and Public Order Act 1994 is now well understood. If a suspect, when questioned, fails to mention a fact which he could reasonably have been expected to mention, and then relies on it in his defence, the jury can draw such inferences from his failure to mention the fact as appear proper. However by section 34(2A), when the suspect is properly detained for questioning, without being allowed the opportunity to consult a solicitor before being questioned, it is not open to the jury to draw any adverse inferences from his failure to mention a fact later relied on. The legislative structure is clear: where section 34(2A) applies, the drawing of an adverse inference from failure to mention a fact later relied on at trial is prohibited. That is an important safeguard for the detainee. It does not follow, however, that everything or anything said by the suspect at the interview is rendered inadmissible unless he has been given the opportunity to receive legal advice. In short, dealing with it broadly, the protection given by section 34(2A) involves the disapplication of the adverse inferences provisions in section 34: it does not render inadmissible the answers given by the detainee during questioning.

[78]Fulford J also addressed the mistaken use of “old style” cautions. He examined the domestic authorities, and decisions of the European Court of Human Rights. He concluded that the use of an incorrect caution was not decisive when deciding whether there was any breach of Article 6. The obligation of the court was to look at the circumstances, and the proposed use to which the evidence would be put, provided that the rights of the defendant were not caused “irretrievable prejudice”, and could be addressed in the summing-up through proper judicial directions. Addressing Omar’s individual position, Fulford J concluded that the mistaken use of the old style caution had no apparent effect on Omar’s attitude to the questioning. He had been told, throughout his time in custody, of his right to remain silent, and the warning that adverse inferences could possibly be drawn at trial from his silence did not lead him to incriminate himself. He continued telling exculpatory lies.

[79]We are faced with an altogether different submission by Mr Michael Wolkind QC. In essence he argued that the entire issue of the safety interviews was mishandled by Omar’s trial counsel. It was inappropriately conceded that Mr McKenna’s decision was lawful. His actions were never questioned when they should have been. He was not required to give evidence to establish that he was acting within his powers, or to explain the custody record, or discussions with the solicitor. No evidence was called about what Mr Graham himself had said about his availability. Possible breaches of two distinct rights were in issue, the first to hold the detainee incommunicado, which related to contact with people other than lawyers under code C:5, and the power to deny the detainee access to legal advice under Code C:6. Although the decision to hold Omar incommunicado could not be challenged, the decision in relation to access to a solicitor was unlawful. The police lacked the authority to ignore Omar’s request to have a solicitor contacted as soon as reasonable possible. Their right was limited to the power to delay access to legal advice, or to refuse to allow him a private consultation. In short, Mr McKenna was obliged to request the attendance of a solicitor to advise Omar as soon as practicable. Until he did so, the power to order that an interview should proceed in the absence of the solicitor, or to deny Omar access to legal advice, did not begin to arise. Therefore the safety interviews were wholly misconceived

[80]This is not a retrial, yet we are nevertheless being invited to reconduct the voire dire on the basis of Mr Wolkind’s submission that, so far as Omar was concerned, the police acted unlawfully, and that their unlawful activity which was overlooked at trial requires to be addressed now. Expressed in this way, in a system in which the rule of law must prevail, the submission is superficially attractive. However it ignores or sidelines two important further considerations. First, breaches of the relevant Code do not make subsequent police actions unlawful, at any rate in the sense that they are or would be sufficient of themselves to lead to the exclusion of the results of the subsequent interviews. When, as the judge found, the police were not seeking deliberately to manipulate the system in bad faith, he was required to address the exclusionary powers provided by section 78 of PACE: no more, no less. This leads to the second consideration, that it is always open to the defendant’s advocates at trial to make a deliberate forensic decision to waive or ignore, and therefore choose not to rely on the breaches of the relevant Code, if the effect of inviting attention to them may increase rather than diminish the defendant’s difficulties. In short, the trial advocate must make his own judgment whether to advance argument based on breaches of the relevant Code, or to argue some, or one, but not all of them.

[81]Mr Wolkind sought to draw a distinction between delayed access to a solicitor and denial of such access. However in the context currently under consideration (Code C and Annex B) delaying access to a solicitor is no more than temporary denial of such access. Omar was not permitted access to a solicitor until he had been at the police station for 8 hours, or so. In the context of access to his solicitor, for that period access was both delayed and denied. Effectively the two were synonymous. Either brought section 78 of PACE into play. The judge addressed the circumstances and the consequences of this deliberate denial of access, and the consequent possible unfairness of the safety interviews into evidence. In the absence of bad faith, the crucial question was whether to admit the results of the interviews when Omar had been deprived of access to his lawyer or legal advice, irrespective whether Omar had been denied the right to have a solicitor contacted as soon as he asked for one.

[82]We can find nothing in these submission to support the conclusion that Fulford J’s decision to admit these interviews was in any way flawed. Ibrahim’s safety interview

[83]Ibrahim was arrested on 29 July at 13.45 on suspicion of involvement in acts of terrorism which took place on 7th and 21st July in London. He was cautioned, and placed in a “forensic suit” and overshoes and put in a police vehicle. He was told that he would be asked questions about the “safety of the premises” where he was arrested. He said that he understood. He was asked whether there was any material in the premises which might cause danger, and he said “No”. He was asked whether there was any material anywhere which the police should know about, and he replied that they already knew about 58 Curtis House because they had been there. He then identified the other man the police had seen at the flat as Mohamed, and he was asked whether Mohamed had control of any materials which were likely to cause danger. He replied “no, listen, I have 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 the police would interview him later about “all that”, they just wished to know if he could tell them whether there was “any other location that you know about that is likely to cause danger”? Ibrahim commented that he appreciated that the police were trying to link “us with 7/7. I have seen it on the television. That is nothing to do with us. I don’t know those people. I am a Muslim. I can’t tell lies. OK I did do the bus but I had nothing to do with 7/7”, and he added that he would tell the police whatever they wanted him to say.

[84]He arrived at the police station at 14.20. The reason for arrest shown on the custody record was “CPI-believed involved in attempted attacks on 21st July. TACT 2000”. At 14.30 it was recorded that he appeared fit and well, in good humour, without complaints. While the appropriate formalities were being undertaken, and when asked if he had ever tried to harm himself, he started to chuckle. He requested the duty solicitor.

[85]At 16.12, during the booking in procedure, he asked a police officer “how long am I looking at, 50 years?” The process of booking in, taking samples and preserving scientific evidence was completed shortly afterwards. It was impracticable for him to see a solicitor before these processes were complete.

[86]At 16.20 he was reminded of his right to free legal advice, and he replied that he understood what had been said to him. He was assessed as fit to be detained by an appropriate medical examiner at 16.25. The duty solicitor was telephoned at 16.42 and provided with a reference number. In the meantime Ibrahim was observed praying in his cell. He finished praying by 16.55.

[87]At 17.00 a representative of his solicitors, whose offices were nearby, telephoned the police station and asked to speak to Ibrahim. She was told, and the custody sheet recorded that he was “unavailable”. It is argued that at this stage no proper explanation for this alleged unavailability was provided: further, the solicitor should have been able to talk to her client on the telephone. However, the jailer at the police station gave evidence that the arrangements involving other prisoners may have made telephone contact impossible at that stage. The solicitor’s representative telephoned again at 17.40. The custody record noted that she was told that details would be passed to the officer in charge of the investigation, for him to call her. She was told that telephone contact was impracticable because the appropriate consultation rooms were unavailable. Specific evidence to this effect was given to Fulford J.

[88]Fulford J examined a chart which showed the times and locations of the various interviews and consultations taking place throughout the relevant time at the police station. Eighteen detainees, all arrested for suspected involvement in the events of 21 July were under arrest. Having examined the evidence the judge accepted “unhesitatingly” that it would have been impracticable for a telephone conversation between the solicitor and Ibrahim to be arranged at the time of her telephone calls. The immediate priority was to make facilities available for consultations with solicitors actually present at the police station. He recorded, as the police accepted, that as a result of a breakdown in communication, the officers who were to interview Ibrahim were not told that the duty solicitor was trying to speak to him on the telephone.

[89]At 18.10, according to the custody record, Mr MacBrayne ordered an urgent interview and that Ibrahim should be held incommunicado. He would attend to update custody record. In due course it was indeed updated. The record shows:

“I have considered the need to conduct an Urgent interview with Muktar Said Ibrahim. I authorise an interview with Muktar Said Ibrahim presently detained at Paddington Police Station; his right of access to legal advice will be delayed on the following grounds: Reasonable grounds for believing that delaying such an interview would involve immediate risk of harm to persons or serious loss of, or damage to, property; Will lead to the alerting of other people suspected of having committed such an offence but not yet arrested for it; and by alerting any person will make it more difficult – (i) to prevent an act of terrorism; OR (ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism.”

The above beliefs are based on the following IBRAHIM is suspected of detonating an improvised explosive device on the London transport system on Thursday the 21st July 2005, this was part of an organised simultaneous attack that involved at least three other persons and I believe was a ‘suicide attack’ and those concerned were intent on killing themselves and inflicting mass casualties on the public. The total extent of those involved is not yet established and other suspects may remain at large. Premises at 58 Curtis House is believed to have been used to manufacture the improvised explosive material; it is not known at this stage how much explosive was manufactured; where any may still be; or if it is under the control of an individual or individuals who may still conduct a similar attack. It is imperative and to preserve and secure public safety that all appropriate measures are taken to identify, locate and detain any other suspects prior to attempting to repeat events of 21st July. It is necessary to take all proportionate steps to detain any persons engaged in the commission, preparation and instigation of acts of terrorism related to this matter to protect the public, prevent loss of life and substantial damage to property. Awaiting the arrival of a solicitor and permitting any pre-interview consultation before any attempt to establish the above facts WILL cause unnecessary delay to this interview process. I have considered the requirements of PACE and the associated Codes of Practice and believe that this course of action is necessary and proportionate. ANY interview with Ibrahim under this authorisation must cease when the risk to life and public safety is averted. In granting this authorisation I have considered Ibrahim’s rights under Article 6 HRA and believe that this authorisation is both proportionate and necessary to ensuring the Article 2 rights of the public in general.”

The above beliefs are based on the following

[90]Cross-examined on this issue during the voire dire, Mr MacBrayne agreed that he had not specifically addressed the possibility of permitting a telephone consultation between Ibrahim and his solicitor. He further agreed that even if a face to face conference had been arranged between them, he could have cut it short or made it the subject of a time limit. He was aware that a firm of solicitors had been in touch with the custody suite at the police station, but decided to delay access to a lawyer because of the time which might be involved in the process.

[91]At 19.00 the medical examiner saw Ibrahim again, and at the same time, another solicitor, from a different firm, Arani & Co., telephoned the police station asking to speak to Ibrahim Muktar Said. She provided the year of his birth. She was told that no one of that name was held at the police station. At 19.10 a police officer telephoned her confirming that he was not in custody. At 19.45, when it was established that he was at the police station, the solicitor for Arani & Co was told that he was already represented by the duty solicitor.

[92]At 19.42 a hot vegetarian meal was provided. At 19.58 he was taken from his cell for a safety interview. It was 5½ hours since Ibrahim had arrived at the police station. Mr MacBrayne explained that the need for the safety interview was urgent, but the start of the interview was a matter for the discretion of the interviewing officers. The interviewing officer was already involved interviewing another suspect, and he was preparing himself for a further interview with that suspect. He was not given very much warning of his involvement in the safety interview with Ibrahim. He said, no doubt accurately, that it was “a very hectic time”.

[93]Mr MacBrayne accepted in evidence that before the beginning of the interview it may have been possible for the solicitors to see Ibrahim. He recounted his experience, however, that these conferences could be “extremely protracted” notwithstanding that the conference could be interrupted or made subject to time limits.

[94]At 20.00 the representative of Arani & Co contacted the custody officer. The custody record showed that there was now an issue because two solicitors were wishing to represent “Ibrahim”. In evidence the solicitors’ representative said that she told the custody officer that the duty solicitor had withdrawn from the case, and that Arani & Co were acting for Ibrahim. Ibrahim was told of this later, at 23.28. He indicated that he was content with the duty solicitors acting for him, and in the end did not give consent to Arani & Co acting for him until after 8.00 the next morning. In the meantime, however, the safety interview was under way. During the interview the solicitors’ representative again telephoned the police station seeking to speak to Ibrahim.

[95]The safety interview ended at 20.35. It lasted 37 minutes. It began with a reminder of the caution that “you do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on at court but anything you do say may be given in evidence. And what that means is that I am going to ask you some questions, you don’t have to say anything if you don’t want to but the court can draw what’s called an inference from that and that just means that they can look upon your silence as perhaps a sign of guilt. And then what is being said here, it is being tape recorded and it can be used in court.” The interview would take place immediately, before Ibrahim had seen a lawyer, on the authority of a superintendent based on the risk of loss of life or serious damage. Ibrahim’s initial indication was that he was not happy to speak to the police. However this discussion came to a fairly abrupt halt when a fault developed in the audio tape. When a new tape was inserted, Ibrahim was cautioned again. The caution followed the terms of the previous caution. Ibrahim indicated that he understood the caution. It was again repeated that the interview would take place before Ibrahim had the benefit of legal advice because of risks to the safety of the public and serious damage to property.

[96]The interviewing officer emphasised the importance of telling the truth, and repeated back to Ibrahim his comments when first arrested, that he was a good Muslim who wanted to tell them the truth. Ibrahim responded that he would tell them anything he knew, that they had the wrong person. He did say, however, that he knew why “those people do this such a thing you know”. “And I explained to them Iraq, because of the war of Iraq and Palestinian and all this. So we were just talking about this. I told them I, I will tell you anything that I know”.

[97]He was asked whether he had any materials such as explosives detonators or chemicals stored anywhere, and he said no, and that he had no idea where any such material might be. He denied having any knowledge of plans to carry out attacks that might endanger the public. When he was pressed whether he knew where chemicals and explosives might be stored, he said that he did not know. He assured them that he didn’t know anything about explosives and that he had no link with any terrorism groups. He added that he did not know anyone that did explosives, or anyone who was a danger to society, or planning terrorist activities. He did not deal with explosives. He did not know two of the men connected with events of 21st July shown on television. He was unaware of anyone he knew having been involved in these events. Mohamed, he said, was not someone who would be prepared to do anything like that. In short, he lied about his knowledge of explosive materials, and events on 21st July. His explanation for the activities of others on 21st July was the war in Iraq.

[98]At 20.45 the duty solicitor arrived at the police station. At this time Ibrahim was sleeping, although he responded when asked if he was alright. He saw her for a conference at 22.05. At 23.28 he was informed that his solicitor had arranged alternative representation by Arani & Co. He responded that he was happy with the duty solicitor.

[99]During subsequent interviews while Ibrahim was in detention, he made no comment.

[100]Mr Carter-Stephenson QC in effect renews the submissions made to and rejected by Fulford J. The right of access to a solicitor is critical, fundamental. The duty solicitor should have been allowed to speak by telephone to Ibrahim. There was sufficient opportunity for a face to face consultation to be arranged. If these steps had been taken a solicitor would have been present during the safety interviews.

[101]The direction given at 18.10 by Mr MacBrayne, asserting that to wait for the arrival of a solicitor and permit a pre-interview consultation would cause “unnecessary delay” to the interview process constituted a serious error of judgment. The first safety interview did not take place until over an hour later.

[102]Before Fulford J something was made of the attempts made by the representative of Arani & Co to contact Ibrahim, but Fulford J observed that her possible involvement in the process at that stage, at any rate, was of “questionable relevance”. She was not acting for Ibrahim at that time, and Ibrahim had requested the attendance of the duty solicitor. Mr Carter-Stephenson further submitted, however, that the continued questioning of Ibrahim after he had made a number of denials of knowing anything or anyone that might involve a risk of public harm, constituted a breach of Code C 6:7, and that questioning should cease until the detainee had received legal advice once “sufficient information had been obtained to avert the risk”. Finally the caution actually administered, the new style caution, was inappropriate. It contributed to making the process unfair by introducing an element of coercion.

[103]Fulford J addressed the facts in detail. As we have noticed, when Ibrahim asked to see the duty solicitor, 18 suspects were held in the custody suite, all in relation to the events on 21st July, and all under the terrorism provisions. The circumstances facing the police were “unique and extremely difficult”, among other pressures that no contact or communication between any of the suspects would be appropriate. Elaborate precautions had to be taken to ensure that any “forensic evidence” was not lost or contaminated. When the duty solicitor telephoned, neither of the rooms with an appropriate telephone socket was available. Fulford J accepted that there was a breakdown in communication between the investigating and interviewing officers, and that the officer interviewing Ibrahim was not told that his solicitor had been trying to speak to him from 17.00 hours. He also recognised that when Mr MacBrayne decided that the interview should not be delayed to enable a solicitor to attend the police station for a face to face meeting, he overlooked or did not sufficiently address his entitlement to set a time limit on any consultation. At the same time Fulford J believed that proper advice for someone in Ibraham’s position could not be given in a short time. For any such meeting to have real value between a solicitor new to the case, and his new client, a significant period was required. The judge also accepted that in theory there was time for a face to face conference to be arranged between 18.10 and 19.58. At the same time he addressed the “exceptional pressure” the police were working under, and in particular the problems of ascertaining when interviews with each of 18 suspects would occur, given the pressure on everyone and the available facilities. He concluded that it was “wholly understandable” that the officers involved in Ibrahim’s case failed to appreciate that there was time to have asked the solicitor to attend for a meeting with him before the safety interview began. In the circumstances actually prevailing, the police had not behaved unreasonably in failing to arrange or permit a face to face conference.

[104]Fulford J concluded however that the denial of telephone access between Ibrahim and the duty solicitor between 17.00 and 19.58 constituted an infringement of Ibrahim's rights. This however was of “low significance”. A telephone conference would have been of extremely limited value. The solicitor could have advised Ibrahim of his right to say nothing, but save in relation to the error in using the “new style” caution, his core rights had already been made clear to him by the police. He had been told that he was entitled to legal advice, which had been delayed for public safety reasons, and that he was entitled to remain silent and that anything he did say might be given in evidence against him. Moreover, there was no suggestion that he failed fully to comprehend what he was told. The judge described the use of the “new style” caution as an error, but believed that it was a “straightforward and wholly understandable oversight”. He also rejected the suggestion that, in effect, that the officers conducting a safety interview were required to bring the interview to an end once the detainee had given an answer or series of answers to any particular topic. As he put it the officers are “not expected to believe and accept what is said by the detainee”, and they were entitled to continue to press and probe in the interests of pubic safety provided the questioning was “fair” and so long as its purpose was to address safety issues. Finally, he noted that before the interview began Ibrahim was seen by a doctor and provided with a meal: the interview was short (about 38 minutes). It was not conducted coercively and the questioning did not go beyond the legitimate objective of the safety interview.

[105]We have reflected carefully on Mr Carter-Stephenson’s renewed submissions. Having explained in detail how Fulford J approached the problem which confronted him, we shall simply record that we can see no basis for interfering with his decision that the safety interview should be admitted. Mohamed’s safety interview

[106]Mohamed was arrested on 29 July at 15.22. He was cautioned. He said he understood the caution but did not understand the reason for his arrest. That was explained to him, and Mohamed asked “what type of terrorism, a bomb?”. During later interviews in the presence of his solicitor, Mohamed denied asking that question. He was asked if there was anything in the flat that could cause harm or injury to the officers who were about to search it. He said there was not. Mohamed arrived at the police station at 16.29. At 16.39 he requested the assistance of the duty solicitor. At about the same time the appropriate forensic processes in relation to evidence, samples and so on began.

[107]At 17.05 the custody officer asked that he should be informed whether Mohamed was to be held incommunicado. This was authorised at 17.48. Mr MacBrayne authorised an urgent interview, which would delay access to legal advice, for effectively the same reasons as those which applied to Ibrahim. The record needs no repetition.

[108]At 11.59 the custody officer telephoned the duty solicitor scheme. He was given a reference number. The duty solicitor was contacted at about 19.00.

[109]In the meantime the forensic procedures came to an end at 19.16. At 19.19 Mohamed signed the custody record and indicated that he wanted to speak to a solicitor as soon as practicable. At 19.34 he was told that he was being held incommunicado. At 19.45 he was allowed back to his cell so that he could pray. In the meantime the duty solicitor’s office had telephoned the police station and left a number. The solicitors arrived at the front desk of the police station (rather than the custody suite) at about 20.00.

[110]At 20.14 the safety interview began. It finished shortly afterwards, at 20.22. At most it lasted 8 minutes. Before it began no check was made to see whether solicitors had arrived, and four hours or so had elapsed since Mohamed’s arrest. There was, as the police accepted, a significant time lapse before the start of the interview. However Mr MacBrayne explained that the need to ask the questions was still just as great as it was at the time of the arrest, and it was for the officers at the police station to make the decision about the precise time when the interviews should occur. In the meantime the solicitors presented themselves at the custody suite of the police station at about 20.40. Mohamed saw his solicitor for the first time at 21.45. By then the very short and only safety interview with him had finished.

[111]At the start of the interview he was told that he was under caution and that he did not “have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence…” The effect of Mohamed’s response to questioning was that he had “nothing to do with what’s happened, and I have no knowledge of anything, you believe strongly that I am involved, I’ll tell you, I am nothing to do with it, with that and I don’t know nothing. I don’t know whoever has, I have no involvement”. He was 100% sure of this, and he did not associate with individuals involved in this kind of crime. Any such incident scared him. He did not know and had heard nothing about anyone who might plan to cause explosions nor did he recognise any of those involved in the incident on 21st July from the photographs of the alleged perpetrators shown in the media. He did not know how to make explosive devices. In essence, he repeatedly and untruthfully asserted that there was nothing he could tell the police.

[112]At 20.59 he was seen by a doctor. It was recorded that he was well and fit to be detained and interviewed.

[113]Mohamed was not interviewed again until 11.15 on 31 July. Before very long, a statement from Mohamed was read out by his solicitor which asserted that he was not a terrorist, nor in “any way connected to any acts of terrorism…particularly on 21st July or the 7th July 2005”. Effectively he exercised his right to silence.

[114]On these facts it was submitted that the entitlement to access to a solicitor before and during his safety interview was breached. The decision to delay such access was said to be improper and unfair, and on close analysis, unreasonable. Although bad faith was not alleged at trial, it was suggested that the interview was not an urgent interview at all, and that it started while the solicitors were on their way to the custody suite. There was therefore no reason not to delay the interview. Moreover Mohamed was given the new style section 34 caution rather than the old caution, appropriate to the situation in which Mohamed found himself.

[115]Fulford J accepted that the wrong caution had been given, and that Mohamed was denied legal advice from the time when he first asked for it at 16.39, until after the conclusion of the safety interview. This was a delay of virtually 4 hours.

[116]These submissions are renewed before us, on the basis that Fulford J’s decision that the safety interview should be admitted was wrong. The judge was confident that this was a genuine safety interview. The short interview lasting 8 minutes was not held in coercive circumstances. It was not suggested that Mohamed did not understand what had been said to him. Apart from the fact of the interview, and the terms of the caution administered to him, Fulford J could find no evidence of pressure having been applied to Mohamed. Throughout the interview he was able to “resolutely” maintain that he had no information to impart. The interview did not exceed the legitimate bounds or purposes of a safety interview. Rather, it was appropriate and properly focussed.

[117]Having examined Fulford J’s decision to admit the safety interview in evidence, notwithstanding the renewed submission on behalf of Mohamed, we can see no basis for interfering with it. Allegations against Ms Arani

[118]Ibrahim, Mohamed and Omar were represented by a firm of solicitors of which Ms Arani was the principal. An attack on her character was made on behalf of Asiedu by his counsel, Mr Stephen Kamlish QC in his opening and closing speeches. It is argued that these attacks were unjustified, and by implication that they tainted and undermined the defendants whom she represented.

[119]We must first explain the development of the “cut throat” defence between Asiedu and the other principal defendants. The first defendant to give evidence was Ibrahim. When cross-examined by Mr Kamlish the essence of Asiedu’s defence was put to him. Ibrahim accepted that he and Asiedu associated while on remand in HMP Belmarsh and that he believed that Asiedu wanted to change solicitors because he was dissatisfied with those then representing him. He denied that he had asked Ms Arani to send money to Asiedu in prison or that he had asked Asiedu to change solicitors. He agreed that Ms Arani had sent Eid cards to her clients in HMP Belmarsh. These included religious mottoes and quotations, with similar wording to cards that Ms Arani sent Asiedu. Ibrahim denied any knowledge of how a document, which became known as “page 20”, found its way into the prison. This was a printed document, taking the form of a commentary on Asiedu’s then defence statement or draft defence statement. Ibrahim accepted that this must have come into the prison from outside, via legal papers. Ibrahim said that his own thumb print must have got onto it when he accidentally touched it in Asiedu’s cell. Mohamed was later to accept that a number of fingerprints and some of the handwriting were his. Ibrahim denied contributing to the drafting of the document and in particular a line which had been scrubbed out but which had originally read, “the device was discarded as this was your role, not due to compulsion”. He denied that he was in league with his solicitor to persuade Asiedu to change his case to agree with the “hoax” account.

[120]When opening Asiedu’s case Mr Kamlish raised with the jury three respects in which he suggested the conduct of Ms Arani called for an explanation namely:-(i) she sent Asiedu 5 sums of money totalling £650 between April and September 2006;

(ii) she sent Asiedu two Eid cards which, counsel argued, could be construed as containing implied threats, and

(iii) she assisted Ibrahim to pressurise Asiedu into serving a defence case statement which accorded with the cases of the other main defendants, specifically by supplying “page 20” to him in prison.

[121]Asiedu’s evidence was that he was put under extreme pressure, particularly by Ibrahim and Omar, to change solicitors and to be represented by Ms Arani. He made an application to the court for a change of representation, which was refused. He said Ibrahim told him to say in his defence statement that it was a demonstration, that he should not break ranks and that he should give allegiance to Ibrahim. He would be given an account of what he should say about the events of 21 July. He was given instructions by the co-accused in documentary form as to what he should say, but he had thrown these away. He received money from Ibrahim’s family and also the money from Ms Arani to which we have referred. He was under pressure to do what he was told. He agreed that the co-defendants had not seen his defence case statement before it was served but he had reluctantly agreed to show it to Ibrahim who took it away for a week. When it was returned there was another document with it which Ibrahim said had been written by Mohamed. This was “page 20”. Asiedu said that Ms Arani had sent the Eid cards and that Ibrahim had told him that he should not give evidence unless he could support the hoax defence. He told his co-defendants about a week before giving evidence that he was going to speak the truth. When he was cross-examined it appeared that Asiedu, for his part, saw nothing sinister about the fact that Ms Arani sent him £650, which he accepted as charity, and he did not feel that it was a bribe to which he had to respond, nor did he construe the Eid cards as in any way putting pressure on him.

[122]The first defence closing speech was made on behalf of Ibrahim. It included a strong, sustained pre-emptive attack on Asiedu. When the final speech on behalf of Asiedu followed, Mr Kamlish maintained his criticisms of Ms Arani, and vigorously attacked Ibrahim’s attempts to coerce Asiedu into agreeing with the “hoax line” and his solicitor’s participation in it. At the time no objection was taken to its terms. The next speech was made on behalf of Omar. No mention was made of any issues arising from criticism of Ms Arani. Counsel on Mohamed’s behalf pointed out that no one suggested that he had anything to do with the attempt to coerce or persuade Asiedu into changing his defence.

[123]Objections to these events at trial are now advanced in grounds of appeal by Mr Wolkind, and Mr Milliken-Smith QC, like Mr Wolkind newly instructed for the present applications, on behalf of Omar and Mohamed. The grounds settled by Ibrahim’s counsel do not refer to this ground of appeal, but according to a note put in by Ibrahim, and drawn to our attention by his counsel at the start of the hearing, Ibrahim wishes to associate himself with it. His counsel did not address any argument in support.

[124]In written submissions it was suggested that leave ought to have been sought under Section 100 of the Criminal Justice Act 2003 before evidence of the bad character of a person other than a defendant was adduced. That was not suggested at trial. Indeed no objection was raised to the cross-examination either by Mohamed or Omar, who were represented by Ms Arani, or for that matter Ibrahim, who was also represented by her, and the defendant most directly involved in Asiedu’s allegations. The prosecution suggest that the evidence on which these allegations were based is “evidence of misconduct in connection with the … prosecution of [the] offence” under Section 98 (b) of the Act. In our judgement that is plainly right and the contrary is not sustainable. This point was abandoned in oral submissions before us.

[125]The alternative submission, if leave under section 100 was not required, was that there was no evidential foundation for the assertions made by Mr Kamlish, particularly those in his closing speech, by when Asiedu’s concessions in cross-examination had removed the factual basis for these submissions. The judge should therefore have prevented Mr Kamlish from repeating his opening submissions in his closing address and should have directed the jury to ignore them.

[126]Despite the fact that Fulford J had circulated well in advance a succession of “chapters” showing all the directions he was proposing to give the jury, both on law and fact, and invited proposals for amendments or additions, it is noteworthy that no submission to the effect now canvassed was made by any counsel at any stage of the trial.

[127]The chief protagonists in the issues arising about Ms Arani’s conduct were Asiedu and Ibrahim. So far as Mohamed and Omar were concerned the forensic decisions taken by experienced trial counsel were, so far as possible, to distance their clients from the dispute. Mr Wolkind submitted in the end, not only that trial counsel made the wrong forensic decision, but, as part of the judicial “duty to supervise the proceedings”, the judge should have intervened and invited him to reconsider the line he had taken or was proposing to take. If counsel for Asiedu was unrepentant, the judge ought then to have given appropriate directions in his summing up. Mr Milliken-Smith on behalf of Mohamed associated himself with Mr Wolkind’s submissions.

[128]In our view it is clear that even if all the allegations against Ms Arani had been excluded (or the jury directed to ignore them) an acute issue between Ibrahim and Asiedu as to Ibrahim’s personal role in attempts to persuade or coerce Asiedu remained. That was the real cut-throat issue, crucial to Asiedu’s defence. Whether or not his solicitor was also involved with Ibrahim’s attempts to persuade Asiedu to change his defence was a consideration of lesser importance.

[129]When dealing with these issues in his summing-up the judge stressed that allegations advanced by counsel were not evidence and it was only the answers given by witnesses that were, adding “it is very important to distinguish between the two”. In particular, at the request of Ibrahim’s counsel he directed the jury in these terms:- “This has been a long trial with a great deal of evidence. Inevitably counsel will sometimes inadvertently misstate a piece of evidence in the course of a speech. Sometimes errors are noted and corrected. Sometimes they pass unnoticed. If counsel said anything which does not accord with your recollection, your note of the evidence or my summing up disregard what he said”. Mr Wolkind’s argument is that this direction should have been brought to life by specific examples taken from Mr Kamlish’s speech. We disagree: the summing up dealt adequately with these points.

[130]Although for his own part, Asiedu made the concessions summarised earlier, some undisputed and surprising facts remain: that the solicitor for three of the defendants had the contact that she did have with another defendant when there was at the very least a potential for conflict; that she supplied him, for a time, with substantial sums of money which then stopped; that she appeared to have introduced a document into the prison which could be construed as consistent with Asiedu’s evidence of attempts at coercion. In our view Mr Kamlish was entitled to make what capital he reasonably could out of the evidence of her involvement, if only to draw attention to Ms Arani’s conduct to lend weight to what were otherwise unsupported allegations between co-defendants. It is not without significance that, despite Asiedu’s own concessions, the judge himself had sufficient concern about this feature of the case to refer the issues surrounding Ms Arani’s conduct to the Director of Public Prosecutions for his consideration.

[131]In our judgment therefore the arguments based on the allegations made by Mr Kamlish against Ms Arani are unarguable. The Osman “confession”

[132]During the night of 7/8 June while Osman was in custody at HMP Belmarsh, long after Asiedu had closed his case, when the prosecution closing submissions were being made to the jury, Osman rang his cell bell. It was answered by a prison officer, Mr Bell. Osman said “you know, I was going to go guilty. If I do get guilty I will sue my co-d (meaning co-defendant)”. He then mouthed the name “Ibrahim”. He said he did not want to say it out loud because he did not want anyone else to hear. He asked for his co-defendants to be spied on. Later he rang the bell a second time and asked if Mr Bell had spoken to the prosecution about his safety. Osman then called Mr Murray to his cell at around 3am and told him that Ibrahim was the brains behind making the bombs and trying to destroy parts of London. He wanted to see someone about giving evidence against his co-defendants, for the prosecution. He wanted to speak to MI5, not to any other prison officer.

[133]When the facts were drawn to Fulford J’s attention, it was accepted on Osman’s behalf that his remarks were capable of constituting a confession within the meaning of section 82(1) of the Police and Criminal Evidence Act 1984 (“PACE”). Its proposed introduction would not be opposed.

[134]The Crown’s position was that in the circumstances it would not seek to re-open its case in order to adduce the evidence of the prison officers. However it was submitted on behalf of Asiedu that they should be called to give relevant evidence which reinforced Asiedu’s defence and provided material to justify the attack Asiedu had made on Osman. The confession would not be used as evidence against any of the applicants, and the application was made in accordance with normal common law principles governing the admissibility of such material and under section 76 A of PACE (inserted by section 128 of the Criminal Justice Act 2003 – “the 2003 Act”), which provides: “(1) In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. (2) If, in any proceedings where the co-accused proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence for the co-accused except insofar as it is proved to the court on the balance of probability that the confession (notwithstanding that it may be true) was not so obtained. (3) Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its motion require the fact that the confession was not obtained as mentioned in sub-section (2) above to be proved in the proceedings on the balance of probabilities.” (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence for the co-accused except insofar as it is proved to the court on the balance of probability that the confession (notwithstanding that it may be true) was not so obtained.

[135]No application to admit the confession as hearsay evidence under section 114(1) (d) of the 2003 Act was made. However counsel for Ibrahim, Omar and Mohamed submitted that although the confession evidence was not admissible against their clients, it should be excluded altogether. Its effect would be highly prejudicial without being probative. Alternatively, counsel for Ibrahim and Mohamed, but not Omar, submitted that they were entitled to cross-examine the prison officers and to use prison records of psychiatric assessments and reports relating to Osman (as to which they applied for appropriate disclosure) in order to demonstrate that the confession was unreliable.

[136]The judge ruled that although Osman’s confession could be relied on by both the prosecution and Asiedu, it provided admissible evidence against Osman alone: otherwise it was irrelevant. He excluded the proposed cross-examination of the prison officers and the suggested investigation into Osman’s mental state. The evidence was not only irrelevant to the cases of Ibrahim and Mohamed, but any investigation at that stage of the trial into Osman’s mental condition would be unfair. Part of the judge’s ruling explained:

“Whilst sometimes some latitude is allowed in these circumstances, the consequences here of permitting an inquiry by defendants who are not implicated by this evidence would be that the entirety of the issue of Osman’s mental state, including the suggestion that he has been shamming during this trial as regards mental instability, would have to be explored. This will either need to be done properly or not at all. It would be unfair on both Asiedu and Osman to have this issue hinted at and then left hanging in the air unresolved. Moreover it would be unfair on Osman to have the issue introduced that he had been allegedly shamming as regard his mental state in order to secure some kind of advantage for himself in relation to these proceedings.”

The judge also addressed section 76 A of PACE including section 76 A (2). He observed:

“Section 76A (2) is no more than a statutory provision regularising the introduction of an accused’s confession at the behest of a co-accused, and, in my view, principally it is designed to ensure that a confession can be relied on in evidence by a co-accused, but only if it was not obtained as a result of oppression or inducement. It does no more than regularise the existing position at common law, by ensuring that certain species of unreliable confession are not introduced in evidence. Otherwise the common law position was unchanged in this regard by section 76A. ”

[137]Following the judge’s ruling: i) Immediately before the evidence of the prison officers was called, the jury was given a very firm unequivocal direction that their evidence was relevant only in the cases of Osman and Asiedu, and that it was irrelevant to the remaining defendants. The confession evidence was given. Osman did not apply to give any evidence, whether to confirm or contradict or explain the evidence of the prison officers. ii) A short further closing speech was made on behalf of the Crown, which ended: “What we say is simply that this evidence this morning, for what it is worth, only goes to confirm… Osman’s guilt. That is all we wish to say.” iii) When he came to address the jury, leading counsel on behalf of Osman submitted to the jury that it had always been Osman’s case that he had believed that the bombs were not real. His remarks to the prison officers were no more than a reflection of his state of mind after he had heard the evidence in the case. They did not however indicate his state of mind at the date of the alleged conspiracy. On this basis therefore what Osman said did not amount to a confession at all. iv) When he summed the case up to the jury, the judge repeated the clear unequivocal directions he had given about the use to which the evidence of the prison officers could and could not be put by the jury. In one of the written skeleton arguments before us it was very fairly accepted that these directions were given “in no uncertain terms”.

[138]The judge’s directions to the jury are not criticised. Criticism is directed at the decision to admit the evidence on two grounds, first, that the admission of the confession in evidence wholly undermined these applicants’ defences, and second, in any event, that the effect of section 114 of the 2003 Act permitted the cross-examination of the prison officers and investigation into Osman’s state of mind which the judge had disallowed.

[139]The first ground raises conventional issues. It was accepted all round that Osman’s confession was not admissible in the cases of these applicants. However the confession was said to fall into a special category of evidence, and that leave should have been granted to cross-examine the prison officers and call evidence about Osman’s psychiatric and behavioural problems. The foundation for the argument was that as there was nothing from which the jury could begin to question the reliability and accuracy of his confession the jury would be bound to decide that the events on 21st July were not a hoax. This went to the very heart of the defence, and however strongly the terms in which the judge expressed his direction, the evidence would have a damning impact on the jury’s decision. In effect, the judge’s ruling dealt a fatal blow to the defences of hoax, and the only way for such unfairness to have been avoided would have been to allow the suggested challenge to Osman’s credibility and reliability.

[140]The short answer to this submission was identified by Mr Nigel Sweeney QC on behalf of the Crown. In essence Osman’s confession had only been used as evidence against him, and for the purposes of Asiedu’s case. The reliability or otherwise of Osman’s confession was essentially a matter for him to raise. Mr Sweeney referred to R v Pereira

[2001] EWCA Crim 1020

, a decision of this court which clearly establishes that in such circumstances the applicants would not have any locus to cross-examine or introduce evidence because, as everybody understood at trial, Osman’s confession was admitted on the limited basis that it was not and could not constitute evidence in the case against any of the present applicants.

[141]Pereira and Constantinou were jointly charged with murder. Constantinou had made an out of court statement implicating Pereira as well as himself, but he did not give evidence at trial. There was some material to the effect that he may have been mentally unstable when he made the incriminating statement. Counsel for Pereira opposed the admission of this statement on the basis that it contained material which would significantly damage Pereira’s case. The judge ruled that the statement was admissible as evidence only in the case against Constantinou, and the jury was directed accordingly. On appeal, counsel for Pereira applied, inter alia, for permission to call fresh evidence for the purpose of challenging Constanintou’s credibility and the reliability of his out of court statement. The application was refused. Giving the judgment of the court, Buxton LJ said:

“44. … we are quite clear that there is no basis upon which, in the structure of this case, either the court at trial or a court on a renewed appeal could entertain this application. 45. The reason is quite simple and it goes back to points already stressed in this judgment. That is to say what this evidence seeks to do is to undermine the status of Mr Constantinou’s statement that was used at the trial. But that statement was not, in any event, evidence against Mr Pereira and the judge told the jury that they should not take it into account in that connexion. It was, therefore, not relevant to any issue in the trial between the Crown and Pereira what anybody may say about Mr Constantinou’s veracity or reliability. The evidence would be excluded on the grounds of irrelevance alone. Of course we understand the point, strongly and attractively made by Mr Thornton, that Constantinou’s evidence was going to be prejudicial: but the cure for that prejudice is the one that the judge applied, that is to say the very strong direction he gave as to the admissibility of various types of evidence. The cure for the prejudice was not to have a series of witnesses, including apparently Mr Constantinou himself, saying that he was unreliable as a witness. For that reason, therefore, we do not think that this fresh evidence is such as could be adduced.”

[142]This reasoning clearly applies to the present case. In reality it represents no more than the virtual day to day practice in joint trials in the Crown Court where one defendant has made a confession implicating one or more of the co-defendants. Normally this evidence is adduced against the defendant making the statement by the Crown, as part of the incriminating evidence to establish that defendant’s guilt. He may, of course, cross-examine and introduce evidence, as appropriate, to undermine either the jury’s confidence in the veracity and accuracy of the witness giving evidence of the confession, or he may cross-examine and introduce evidence to demonstrate its unreliability. Sometimes, however, the evidence may be introduced, not by the Crown, but by one of the co-accused in order to assist his defence. Whether or not the evidence of the confession is relied on by the Crown, it may be admissible at the behest of the co-accused (R v Myers

[1998] AC 124

). Section 76 A (2) of PACE introduced a number of pre-conditions to the introduction by one co-accused of the evidence of another co-accused’s confession. Osman would have been permitted to challenge the admissibility of the confession on, for example, grounds of oppression by the prison officers or its unreliability. That did not arise for consideration here because Osman made no such application, nor did he seek to contradict or explain the language attributed to him. His confession was admissible on Asiedu’s behalf. It was and remained irrelevant to the cases of the other applicants. In summary, section 76(A) did not create a new basis for enabling a co-accused against whom a confession is inadmissible as a matter of law to challenge its admissibility. Rather its purpose was to ensure that the defendant whose confession was being put before the jury should be provided with the similar protection against unfairness, whether that confession was introduced by the prosecution or by one of his co-defendants.

[143]In our judgment this criticism of Fulford J’s ruling is not sustained.

[144]The second criticism is advanced by Mr Wolkind and Mr Milliken-Smith. The starting point in the analysis, and its eventual end, is that from a forensic point of view the applicants were far better served by retaining the benefit of the judge’s direction to the jury that Osman’s confession was inadmissible and irrelevant to their cases than they would by the admission of the confession as hearsay evidence under section 114(1) (d) of the 2003 Act in order for its reliability to be challenged. Indeed on behalf of Ibrahim this remained Mr Carter-Stephenson’s position.

[145]Section 114(1) provides:

“(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if – (a) any provision of this Chapter or any other statutory provision makes it admissible, (b) any rule of law preserved by section 118 makes it admissible, (c) all parties to the proceedings agree to it being admissible, or (d) The court is satisfied that it is in the interests of justice for it to be admitted.”

[146]So far as material, section 118(1) provides:

“The following rules of law are preserved. … 5. Any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings. ”

[147]Section 114 (2) identifies a list of specific, non exclusive, factors to which regard must be had when the judge is addressing the question whether it is in the interests of justice for hearsay evidence to be admitted under section 114(1)

[148]The broad submission by Mr Wolkind and Mr Milliken-Smith was that hearsay evidence is now only admissible if it falls within the provisions of section 114 and that the effect of the introductory words of section 114(1), particularly when read in combination with section 114(1)(b), is to make the hearsay evidence in the case as a whole and thus relevant in the cases against all the applicants, and so open to challenge by them by reference to the considerations identified in section 114(2). On this basis Fulford J was wrong to disallow the proposed cross-examination of the prison officers and the introduction of evidence relating to Osman’s behavioural/psychiatric problems. Our attention was drawn to a number of passages in the judgment in R v Y

[2008] EWCA Crim 10

, and in particular paragraphs 47 and 48, which read:

“47. It follows that hearsay contained in a confession is, in law, as open to admission under subparagraph (d) as any other hearsay. There is no basis on which section 114(1) can be read so as to subordinate subparagraph (d) to (b). If that had been intended, the Act would have said so. … 48. … Explicit statutory provision prevails over the common law, not the other way round. The residual power to admit hearsay under section 114(d), if the interests of justice genuinely require it, does indeed prevail over the general common law rule that hearsay is inadmissible, and thus it prevails over the particular common law rule that hearsay contained in a confession is inadmissible except against its maker. …”

[149]R v Y establishes that although a confession can be admitted as evidence under the common law rule expressly preserved by section 118 of the Act in which case it will be evidence only against its maker, it can also be admitted under section 114(1) (d), in which case it may become evidence not only against the maker of the confession, but against the other defendants as well. As Hughes LJ observed in paragraph 42 of his judgment in R v Y, it is “perfectly clear that the sub-paragraphs of section 114(1) are alternatives that is to say that hearsay is admissible if it falls within any one of them. That is apparent from the use of the word “or” linking the final two sub-paragraphs, which means, grammatically, that the last and each of the foregoing conditions is alternative to the others…” In short therefore, Osman’s confession was admissible for the reasons given by Fulford J.

[150]Detailed submissions were then addressed about the inter-relationship between confessions under section 76 of the 1984 Act and confessions admitted under section 114(1) (d) of the 2003 Act. In theory it was admissible under both sections, but subject to the respective protections provided by each. As against Osman’s co-defendants other than Asiedu, the evidence would only be admissible under section 114(1) (d). We need not address the argument further. We simply cannot imagine how such a confession would come to be admitted at the behest of defendants who, simultaneously would be arguing either that the confession was not made, or that the words attributed to Osman were capable of misunderstanding or misinterpretation, or that Osman himself, when using the words reported by the prison officers, was unreliable. This is a circular route leading nowhere.

[151]We respectfully adopt the observations of Hughes LJ at the end of the judgment in R v Y:

“But the greatest care must be taken, before admitting an out-of-court statement under section 114(1) (d),…It is not the effect of section 114(1) (d) that out-of-court statements, whether by co-accused or anyone else, are routinely to be admitted.”

[152]No basis for admitting the Osman confession on the basis of section 114(1)(d) is established.

[153]It is unusual for this court to comment favourably on the forensic decisions made by counsel at trial, but in view of some of the criticisms mounted in these applications, we should record that it would have been utter folly for any of these applicants to have attempted to advance their defences by creating a situation in which Osman’s evidence became admissible evidence against them. Indeed, in fairness, we should emphasise that the remaining criticisms made of defence counsel at trial, as summarised earlier in this judgment, are bereft of merit. Asiedu’s Retrial and Guilty Plea (Osman only)

[154]The jury were unable to reach a verdict in relation to Asiedu. A retrial of his participation in conspiracy to murder was ordered. The re-trial was due to start on 12th November 2007. On 9th November the Crown accepted a guilty plea by Asiedu to an alternative count of conspiracy to cause explosions of a kind likely to endanger life (which was count 2 on the original indictment). This plea involved an admission that Asiedu had told lies when giving evidence in his own defence at the original trial. This is said to provide fresh evidence which undermines the safety of Osman’s conviction.

[155]The basis of Asiedu’s guilty plea at the re-trial undoubtedly involved an admission that he had given perjured testimony at his original trial, at any rate in relation to his direct knowledge of the explosive and dangerous capabilities of the devices distributed on 21st July. The massive quantities of hydrogen peroxide which Asiedu has purchased himself, and whose concentration was systematically increased, meant that he appreciated that the hydrogen peroxide would be used to make a bomb or bombs. His evidence at trial was that he had only discovered this reality on the morning of 21st July, and once he discovered the plan was to activate suicide bombs, he withdrew from the conspiracy and disposed of his device by dumping it.

[156]Mr James Lewis QC submitted that a fair summary of the evidence given by Asiedu was as follows: a) prior to the morning of 21st July, Asiedu had no knowledge of the explosive capabilities of the hydrogen peroxide; b) he first became aware of its explosive nature on that morning when Ibrahim made it clear to the assembled group (including Osman) that the explosives were real; and c) he became aware that morning that the explosives were to be used in suicide bombs when Ibrahim made that intention clear to the assembled group (including Osman).

[157]He pointed out that, by his later plea of guilty, Asiedu accepted that parts (a) and (b) of the evidence he had given at the original trial were untrue, although he maintained his position with regard to part (c). Common sense suggested that the jury in Osman’s trial would have been far less likely to accept part (c) of Asiedu’s evidence if they had known that parts (a) and (b) were a pack of lies. Accordingly Mr Lewis submitted that, without the benefit of Asiedu’s direct evidence, the Crown’s case against Osman had been almost entirely circumstantial. He contended that since Asiedu’s evidence is now known to have been perjured to a significant extent, this court must inevitably conclude that Osman’s conviction is unsafe because, if the jury had been aware of Asiedu’s perjury it might reasonably have affected their decision to find Osman guilty: see R v Pendleton

(2002) 1 WLR 72

[158]We do not accept that Mr Lewis’ summary does justice to the Crown’s case against Osman. Quite apart from Asiedu’s evidence, as Mr Sweeney submitted, the Crown’s case against him was a very strong one. It included the following main elements (at least): i) evidence of association between the principal conspirators from as early as May 2004, namely the camping trip to Baysbrown Farm, Cumbria that month; ii) attendance at Abu Hamza’s sermons outside the Finsbury Park Mosque in 2004; iii) the substantial library of Islamic extremist material of the worst type that was recovered from Osman’s home address, comprising radical lectures by Abu Hamza, Osama Bin Laden and others, together with home-made compilations of graphic visual images showing the beheading and mutilation of a succession of western hostages and a lengthy video film showing how to construct and detonate a ball-bearing suicide vest; iv) telephone association between Osman and his co-conspirators throughout April 2005, providing evidence as to a succession of planning meetings which took place in the vicinity of the applicant’s home and culminated in the first purchase of hydrogen peroxide at the end of that month; and v) fingerprint evidence, for which no explanation was ever provided by Osman at his trial, that clearly linked him not only to the “bomb factory” at Curtis House, but also to the containers and packaging for the hydrogen peroxide that was the principal ingredient for all the explosive devices: i.e. Osman’s two fingerprints, one on an empty 4 litre hydrogen peroxide bottle and one inside a box that had originally contained six 1 litre bottles of hydrogen peroxide – both items having been recovered from a rubbish bin at Curtis House, coupled with the scientific evidence that the hydrogen peroxide content of all the bottles must have been utilised in making the explosive constituent of the bombs.

[159]Mr Sweeney made it clear to the jury from the outset of the trial that it was the Crown’s case that Asiedu had “lied on an epic scale” during his lengthy post-arrest interviews. That was indeed the case, and the Crown’s description was fair and accurate. In due course, Asiedu was cross-examined extensively upon the scope and content of every such lie and had been forced to admit that he had lied and lied again, e.g. by maintaining a false identity for several hundred pages of interview transcripts. Nobody present in court, least of all the jury, could have considered Asiedu’s evidence on any basis other than that he was clearly a comprehensively dishonest and persistent liar. Mr Sweeney suggested that little would have been added to that damning assessment of Asiedu’s overall credibility if the jury had also known about the further lies that he later admitted by his subsequent plea of guilty. The fresh evidence would have merely confirmed that which was already apparent to the jury. In our judgment the distinction which some of the jury were prepared to draw between Asiedu and the remaining applicants was almost certainly based on the fact that Asiedu decided to dump his bomb rather than detonate it.

[160]Independently of Asiedu’s evidence, the Crown’s case against Osman was very powerful. The jury would have considered Asiedu’s evidence at trial on the basis that he was, beyond any shadow of doubt, thoroughly dishonest and an inveterate and persistent liar. If the jury had been aware of the fresh evidence about the additional lies proved by Asiedu’s subsequent plea of guilty it would not have made the slightest difference to the verdict of guilty in Osman’s case. This ground of appeal is unarguable.

[161]Broadly stated, there is a further complaint of the absence of a suitable “clear and tailored” direction by the judge to the effect that, before reaching any conclusion adverse to Osman on the basis of Asiedu’s evidence, the jury needed to be sure that Asiedu had told them the truth.

[162]On examination, there is nothing in this ground of appeal. The jury was given appropriate and clear directions on all the issues arising in this trial. If an additional direction had been suggested by counsel before the summing up began, or even when it was concluded, the judge would have considered whether anything further was required. No such request was made, and we can quite understand why. No such further direction was needed. This ground of appeal is unarguable. Further grounds advanced by Ibrahim

[163]Our attention was drawn to a number of grounds of appeal which Ibrahim himself wished to have considered. Mr Carter-Stephenson put them before us and carefully explained the reasoning which underpinned them, without finding himself able to advance additional supporting argument. We have examined them. They contain nothing to suggest that safety of Ibrahim’s conviction is undermined. Sentence

[164]There are applications for leave to appeal against sentence by Mohamed and Osman. Both submit that the sentences imposed on them were manifestly excessive. They argue that the judge failed to make a distinction between the defendants in the sentences he imposed. In summary, there were differences in their respective roles, their involvement, and the stages at which they joined the conspiracy. Thus, for example, Osman asserts that he was a follower, rather than a leader, and a vulnerable character.

[165]There are occasions, admittedly rare, where it is quite impossible for a sentencing judge to attempt to discern distinctions of degree and involvement between different defendants. This is such an occasion, and for good reason. The stark reality is that on the 21st July each of the applicants, including Mohamed and Osman, resolved to commit mass murder in London on 21st July 2005 and to die in the process. As each of them entered the transport system they shared the same intention, mass murder, dreadful injury, permanent maiming, destruction, chaos and literally, terror. By the time each operated the detonator in the device he was carrying, distinctions of any possible significance which might have been drawn between them at any earlier stage in the conspiracy had evaporated. None remained.

[166]These were merciless and extreme crimes. As they were rightly meant to be, the sentences were severe and extreme. Beyond doubt, however, they were utterly justified. Conclusion

[167]These applications for leave to appeal against conviction and sentence are refused. Footnote

[168]Finally, we must record the indebtedness of the court and counsel on both sides for the high quality of the case summary prepared in the Criminal Appeal Office by Mrs Gill Rorke

Ibrahim & Ors, R v [2008] EWCA Crim 880

Omar’s safety interviews

the judge described it in his ruling:

The above beliefs are based on the following

Cited in 2 later judgments