CASE OF ABDULLA ALI v. THE UNITED KINGDOM
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney
5. The applicant was born in 1980 and is currently detained at HM Prison Frankland. 6. In August 2006 the applicant was arrested, along with others, in the context of a large-scale counter-terrorism operation. It was alleged that he had conspired to construct and simultaneously explode improvised explosive devices (“IEDs”) on transatlantic passenger aircraft in flight, using suicide bombers. 7. A first trial of eight defendants, including the applicant, on charges of conspiracy to murder (Count 1) and conspiracy to endanger the safety of an aircraft (Count 2) began in the Crown Court on 4 April 2008. The prosecution case in respect of the conspiracy to murder charge was that the means by which it was to be effected was by way of detonation of IEDs on board aircraft in mid-flight. 8. After the close of the prosecution case, the indictment was amended to add a further count (Count 1A) which alleged a conspiracy to murder but did not specify the means by which the murder would be carried out. The count was added at the request of the prosecution to cover the possibility that the jury was satisfied that a defendant had agreed to murder but was not aware of the means settled upon to bring the conspiracy to fruition. Count 1 was amended to make clear that it was concerned with a conspiracy to murder specifically by way of detonation of IEDs on aircraft mid-flight. 9. On 8 September 2008 the applicant was convicted of Count 1A but the jury was unable to reach a verdict on Count 1. The jury was also unable to reach verdicts on some or all counts in relation to six other defendants. The eighth defendant was acquitted of all charges. 10. An exchange followed between judge and prosecuting counsel and the judge ordered the prosecution to indicate by 26 September 2008 whether a retrial would be sought. 11. The announcement of the verdict was widely covered in the press and the media. The reports included references to material which was never put before the jury (see paragraphs 19-26 below). The media also attacked the jury’s failure to return a guilty verdict on Count 1. 12. On 10 September 2008 lawyers for one of the defendants wrote to the Attorney General seeking, inter alia, details of what steps had been taken to ensure the integrity of post-verdict/pre-retrial decision reporting and to prevent the reporting of inadmissible and prejudicial materials. 13. On the same day, the Crown Prosecution Service (“CPS”) announced its intention to seek a retrial of the applicant and the other defendants. Communicating this decision to the media, it added: “The CPS would like to remind media organisations of the need to take great care in reporting the events surrounding this alleged plot. These remain allegations only and, if retrials take place, the defendants have the right to a fair trial. It is extremely important that there should be responsible media reporting which does not prejudice the due process of law.” 14. On 11 September 2008 every national newspaper reported that the applicants were to face a retrial. General reporting about the case nevertheless continued until around 14 September 2008. 15. The Attorney General replied to the defendant’s lawyers’ letter on 25 September confirming that the observations had been noted and were receiving consideration. 16. The applicant subsequently applied for a stay of proceedings (i.e. an order effectively terminating his prosecution in respect of Count 1). One of the grounds for the application was that a fair trial was no longer possible as a result of alleged prejudicial publicity which had occurred following the conclusion of the first trial. 17. On 18 December 2008 Mr Justice Henriques refused the request for a stay. He summarised the defence case as follows: “It is the defence case ... that the coverage was manipulated and orchestrated by State sources, either intelligence services, police anti-terrorist branches or government officials. It is asserted that there was a widespread press briefing exercise designed and intended to inform the media of non-evidential material for publication post-verdict, the effect of which was to vilify the defendants in the eyes of the public by supplying the media in confidence with significant undisclosed background material. The State, it is said, failed to take any steps either to notify the court of the confidential press briefings, thus preventing appropriate orders from being made to prevent prejudicial publicity resulting from its own briefings. This was, it is said, a deliberate attempt to manipulate the court’s process on any retrial by seeking to ensure that the world at large was prejudiced against the defendants by an unprecedented volume of St ate-sourced media coverage ...” 18. He considered it implicit in the submissions that the applicant’s argument was that no retrial jury exposed to this volume of publicity could try the case as an unbiased, independent and impartial tribunal. 19. Henriques J summarised the seven examples of inadmissible material which had been published by the press to which the defence had referred by way of illustrative examples. He stressed that this was “by no means the totality of the information complained of”. 20. The first example concerned disclosure of evidence not adduced at trial as to the applicant being in telephone contact with the leader of the 21 July 2005 failed bombings of the London transport system. The statement appeared in almost every national paper and on national media. It was attributed to different sources in different publications, including, inter alia, senior detectives, police, “records show” and counter-terrorism officials. 21. The second example concerned disclosure of evidence not adduced at trial as to deeper links between some of the applicants and others convicted of terrorist offences. This included evidence that the applicant had taken trips to Pakistan at the same time as those responsible for the explosions on the London transport system on 7 July 2005 and the failed 21 July bombing attempt and had been in regular telephone contact with the ringleader of the latter attack. The story was published in virtually every national newspaper and was broadcast on national media. It was attributed to, variously, detectives, intelligence officials, counterterrorism sources, investigators and trial officials. 22. The third example concerned disclosure of evidence not adduced at trial as to the defendants’ acquaintance and contact with a certain Rashid Rauf in Pakistan, who had allegedly put them in touch with Al-Qaeda’s leadership. This had been published in almost every national newspaper and broadcast on national media. Some of the attributed sources included the Pakistani Interior Minister, British officials, intelligence services, internal US intelligence documents, security sources and named senior officials in the United Kingdom and the United States. 23. The fourth example concerned assertions which were not the subject of evidence or disclosure at trial that the plot might have been overseen by Abu Ubaydah Al Masri, the former head of Al-Qaeda’s external operations, who had allegedly overseen the July 2005 London bombing plots. The information was carried by several newspapers and was attributed, inter alia, to the police, counter-terrorism officials, intelligence agencies and senior British and American officials. 24. The fifth example concerned assertions which were not the subject of evidence or disclosure at trial that the alleged plot was disrupted following interception of a text message encouraging the conspirators to act. There was also reference to telephone calls and text messages between the UK and Pakistan and a specific incriminating text sent to the applicant. These were published in some national newspapers and broadcast on television, with the attributed source being a British Government source. 25. The sixth example concerned assertions which were not the subject of evidence or disclosure at trial that the telephones of unspecified defendants were being intercepted by the police and that interception had revealed that a dummy run was being planned. Several newspapers and media sources carried the story, with the source being variously named as the police, counter-terrorism police and the head of Counter-Terrorism Command. 26. The seventh example concerned assertions that the United States Government had pressed Pakistan into making arrests before all the legal evidence had been gathered. The information was reported in several newspapers and by several broadcasters. A terrestrial television channel carried the express statement that the British State authorities had reason to delay the effecting of arrests owing to known intelligence that the conspirators would perform additional incriminating acts in furtherance of the airline conspiracy. The source was said to be the head of CounterTerrorism Command, US sources, senior British police and counter-terrorism sources, and the former shadow Minister for Homeland Security in the United Kingdom. 27. Henriques J set out the events immediately following the handing down of the verdicts and continued: “It is simply not possible in this judgment to recite each and every objectionable word published by the media ... Whilst it will be convenient to cite in due course some of the worst examples, I readily accept that the multiplicity and breadth of reporting must be considered in order to gauge the potential effect upon any juror who will have been exposed to these or any significant number of these many reports ... I have read everything to which my attention has been drawn.” 28. He noted that there was an “avalanche of objectionable material” in prominent position in both broadsheet and tabloid newspapers. There was news coverage across all television and radio channels. There was, and continued to be at the time of Henriques J’s ruling, vast Internet coverage which could be accessed with ease. The very essence of the large majority of the material asserted that all of the defendants were guilty of the conspiracy to blow up aircraft. Henriques J categorised the offending material as follows: “(i) the defendants have strong links with several prominent Al Qaeda terrorists, including Rashid Rauf, 7/7 bombers and 21/7 bombers, of which the jury were not informed; (ii) but for the premature arrest in Pakistan of Rashid Rauf, for which the Americans are to blame, more evidence would have become available to the prosecution; (iii) the activities of the defendants were being monitored by phone taps and other forms of interception and a dummy run was anticipated which might be used to carry out a real attack; (iv) the investigation had prevented unspeakable carnage and loss of countless lives; (v) the jury were incompetent, the evidence was very strong and the jury’s verdict was astonishing; (vi) the trial judge mishandled the trial and in particular permitted a two-week break during the jury retirement, the jury returning for only five days at the commencement of their deliberations before then going on holiday.” 29. On the subject of pre-verdict briefing, Henriques J said: “... [I]t is common practice for there to be pre-verdict briefings in high profile cases. There are any number of matters in which the public have an interest. There is frequently a public debate concerning topics raised by the case. Instant reporting is demanded by the public at large. They are entitled to it. It is their right. Before there can be immediate post-verdict reporting, there must be pre-verdict briefing.” 30. Turning to the first of the specific complaints made by the defence, the judge noted that prosecution counsel had conceded that there had been some “significant disclosure of non-evidential material by the Executive” but had “vehemently objected” to any suggestion that there had been secret briefings. The judge did not accept that secret Executive press briefings had taken place. He referred to material published in particular in the United States and concluded that there were a “multiplicity of avenues” through which journalists could have gained information other than through secret briefings. He explained: “... I regard the submission that the Executive quite deliberately briefed the press during the trial with a view to disadvantaging the defendants in any retrial that might possibly take place as fanciful ... The plot alleged requires not only foresight of a retrial during the trial itself; it requires foresight that the press will breach the embargoes that they have signed not to disclose such material until conclusion of the proceedings.” 31. As to the second allegation, that the State “perpetrated a gross manipulation and abuse of the court process by failing to restrain publicity resulting from its own briefings, the judge found again that there was absolutely no evidence that any individual had been party to such a plot. He described as a “most extravagant allegation” and rejected it “with certainty”. 32. On the third question whether the defendants could receive a fair trial, having regard to the publicity, the judge noted that the publicity was worldwide, often repeated and reported by every branch of the media, including the Internet and associated blogs. It had run in the main from 8 September to 14 September 2008, and much of the reporting remained available on the Internet. He reviewed in some detail the major publications of 9 September as well as a few of the worst other examples. As to the law on adverse publicity, the judge explained: “As to the legal principles relevant to a defendant receiving a fair trial, I have reminded myself of Montgomery v HM Advocate [see paragraph 60 below], and in the context of this case reminded myself that the only issue to be addressed is the right of a defendant to a fair trial and no assessment of the weight to be given to the public interest comes into the exercise. The fact that the allegations here are of the gravest nature is wholly irrelevant. The defendants must receive a fair trial, however grave the allegations and however far-reaching the consequences may be of staying this trial.” 33. The judge considered a number of domestic judgments concerning the impact of prejudicial publicity before or during trial. He continued: “I have concluded that a fair trial is in this case possible for all defendants on this indictment and propose to ensure that each of them does receive a fair trial. In reaching that conclusion I have brought the experience of many years in the criminal courts to this decision. I trust juries and have every confidence that they do indeed have regard to the directions given by judges. ... I trust a jury in this building to decide whether they can be sure on the evidence presented to them that there was indeed a plan to blow up aircraft. I cannot accept the proposition that an English jury may convict because of something they may remember having read many months earlier. I do believe that juries pay attention and act upon the directions we give them. I will give them at the outset of the trial a most careful direction tailored particularly to this case and I shall canvass the direction with counsel before I deliver it. If necessary, I will repeat it from time to time. I have no fears that the jury will be influenced by those earlier press reports. They know that none of us can believe everything that we read in the press ... I believe that sufficient time will have passed by February 16th of next year, over five months since the publicity ... There have been other terrorist trials in the meantime occupying crime correspondents and their readers. I am sure that the facts will have receded and faded, as will any possible prejudice.” 34. The judge further pointed out that all defendants had admitted conspiracy to commit public nuisance by making martyrdom videos and that the first three defendants had admitted conspiring to cause explosions. These convictions would be put before the jury in the retrial and, the judge said, in the face of these admissions links to other terrorists, if remembered by jury members, became “rather less significant”. In any event, in his experience, the impact of pre-trial publicity and prejudicial media coverage was minimal even in high-profile cases. He cited examples of cases where offensive pre-trial publicity had taken place but the defendants had subsequently been acquitted. He concluded that he had absolutely no doubt that juries took their responsibilities most seriously and decided cases on the evidence presented to them in court. He fixed the retrial to commence on 16 February 2009. 35. The retrial of seven defendants, including the applicant, on Count 1 and four defendants on Count 1A duly commenced on 16 February 2009 but was twice aborted in the early stages. On 2 March 2009 a further jury was selected and sworn. During jury selection that day, the judge directed the potential jury members as follows: “It is, of course, of critical importance that we are able to select a jury which is completely unbiased and a jury which is prepared to give its time to a very important case indeed. You will appreciate the gravity of the allegation, a plan to blow up a number of aircraft effectively simultaneously. It is a hugely important task, quite possibly the most important task required or asked of any of you; hugely important public service. Of course not all of you will be in a position to serve and for those who do undertake the task, it will necessarily involve a degree of self-sacrifice.” 36. He specifically asked them whether there was any reason arising from their beliefs, occupation or any other matter that might inhibit their ability to return an impartial verdict in this trial or whether they or any relative or close friend, held views of such strength that they might materially influence their consideration of the case. 37. On the matter of the adverse publicity prior to the retrial, he said the following: “Next: as a result of publicity given to this case and to these allegations, do any of you hold any pre-conceived views of guilt or innocence incompatible with an unbiased discharge of your duties as a juror? No. Thank you. Next: are you, or is any member of your immediate family or any close friend, or have you, or any member of your immediate family or any close friend, been employed by any media agency involved in the investigation and/or reporting of this case? Come forward, sir.” 38. He further asked the potential jury members questions concerning two recent broadcasts which had discussed the case: “Two broadcasts. One broadcast: did any of you watch this programme on BBC television, it was two weeks ago, that is not yesterday, not the Sunday before that but the Sunday before that, in other words 15 days ago, at 10 o’clock in the morning, BBC1, there was a programme broadcast called The Big Questions? The host was Nicky Campbell and there were a panel of three or four experts, if I can call them that, one of whom certainly was a rabbi, when there was a discussion which touched upon the plot to blow up airliners and terrorism and the facts giving rise to this case were to some extent touched upon. Did anybody, 10 o’clock in the morning, watch that programme? Could you come forward, please, sir. Then exactly two weeks ago today, 10.00 pm on a Monday evening, Radio 4, there was broadcast a programme, The World Tonight, in which the alleged plot to blow up airliners was discussed. Did anybody listen to that radio programme on Radio 4? No. Next – sorry, come forward, please. Thank you. I told you that this case started some two weeks ago and on all the major television programmes publicity was given to it. Did any of you, as a result of seeing that publicity, carry out any internet research; in other words, have any of you carried out internet research in the last two weeks into the alleged airline plot? No. Thank you very much.” 39. Finally, the jury having been selected, the judge directed the jury as follows: “Can I please give you some additional instructions? There may now be a temptation, knowing that you are going to serve upon this case, to try to find out a little bit more about it and if any of you are addicts of the internet or the web, there may be a temptation to go on to it and read about it and see about it. Please do not do that. There was an element of inaccurate and unsatisfactory reporting at the time this matter first came to light. The allegations were not accurately reported in every instance and it is critically important that you decide the case upon the evidence that you hear in court and nowhere else. We tell jurors in all criminal cases not to carry out any research of their own. In a typical pub fight case we tell jurors not to go and have a look at the pub, not to turn themselves into sleuths because what is critical is you decide the case only upon what you hear in court. The defendants are entitled to know the basis and the exact basis upon which they are being tried. So, accordingly, please do not, either before the case starts tomorrow or indeed at any stage, carry out any internet research or indeed any research of any kind. I will also give you further instructions not to read any newspapers or listen to any television reports. The reason for that is sometimes they are inaccurate, sometimes they are speculative and they are always partial reporting. The only way you can hear and receive all the evidence is by being here in court, listening to it. That is where you receive the information. The other danger is when you go back tonight you will say, ‘I’ve been selected for a jury’ and those with whom you live or those you meet tonight may say to you, ‘I know all about that case. I have read about it in the newspapers.’ Please do not discuss the case with anybody. It will be quite wrong for anybody to tell you what they think about the case and it might affect your judgment in the long run. You have been selected to try a terrorist case, tell them, because that is what the allegation is here, one of terrorism, and leave it at that. There is no purpose at all in discussing the facts of the case with anybody and, indeed, it would be absolutely wrong and a contempt of court if you were to do so. I have explained the real reason for not doing so is the person you were discussing it with might be playing a part in deciding the case and you and only the 12 of you must do that, nobody else must play any part in doing so. There are other instructions which I will give you tomorrow after the case has started, but for the time being that suffices.” 40. The trial commenced with the prosecution’s opening speech on 3 March 2009. At the end of the first day, the trial judge gave the jury the following instructions: “I am obliged to give you certain instructions. Some of them you are familiar with because I said a few things to you yesterday. I remind you, please, do not carry out any research of any kind into this case, either over the internet or in any other way at all. That includes not visiting any site referred to in the case. All your information must come to you in this court. Please ignore any newspaper reports, if there are any, into this case and please disregard any broadcast of any kind that you may hear. It is vital that you do not discuss the case with anybody for reasons which I gave you yesterday. Other people will express views which might in due course affect your judgment. The decision must be the decision of the 12 of you and nobody else.” 41. The judge reminded the jury intermittently throughout the trial that they were not permitted to discuss the case with family or friends or to carry out Internet research. On 30 June 2009, the first day of the parties’ closing speeches, he said: “We have embarked now upon a new phase of this case and now is as good a time as any to remind you of what I said earlier in the case about avoiding information which may in some way touch upon terrorism or even this case. I remind you again, please: do not carry out any internet research. Do not read any books. Do, please, switch channels if a television programme comes on which is obviously about terrorism or some related topic. Please avoid all newspaper articles and the like which deal with terrorism. The reason for that is to allow you to approach the facts of this case and when you come to reach your several decisions with a clear mind, unaffected by anything outside of this case, anything originating outside this courtroom. You decide this case on the information that you have received within this court and nothing else.” 42. Again during his summing-up, the trial judge reminded the jury that they should not discuss the case with anyone outside the jury. Once the jury had retired to consider its verdict, he reminded them at the close of each day that they should not discuss the case outside the jury room. 43. On 7 September 2009 the applicant was convicted on Count 1. Of the other six defendants tried on Count 1, two were convicted, three were acquitted and the jury were unable to reach a verdict in respect of one. Of the four defendants tried on Count 1A, one was convicted and the jury were unable to reach a verdict in respect of the other three. 44. The applicant was sentenced to life imprisonment with a minimum term of forty years. 45. The applicant sought leave to appeal against his conviction. The Court of Appeal granted leave on several grounds, including the question whether the retrial was fair having regard to the media publicity after the first trial. 46. On 19 May 2011 the appeal against conviction was dismissed. 47. The court noted the high media interest in the first trial and the simultaneous reporting of the trial proceedings, including the verdicts. It observed that in the circumstances it was impossible to have imposed restrictions on the verdicts as no-one had applied to the trial judge to ask for this to be done before the verdicts were taken. Even if such an application had been made and granted, given the worldwide interest in the case the Court of Appeal considered it difficult to see how publication of the verdicts could have been prevented in jurisdictions outside the trial court’s jurisdiction. 48. Responding to the submission on behalf of the applicant that jurors at his retrial could no longer be relied upon to follow the trial judge’s directions, the court said: “92. To the extent that there remains the risk that, despite what jurors are told by a judge, an individual juror might look up matters on the internet, any attempt by an individual juror to use what was found to influence the views of the other jurors is, in our judgement, bound to fail. For what was found on the internet to have any influence on the verdict of a jury, it would require other members of the jury to disobey their oath. In our judgement, ... the trial process in this trial was capable of coping with the adverse publicity. There was, it must be emphasised, no evidence at all to suggest that any juror had sought information on the internet.” 49. The Court of Appeal emphasised that allegations that the publicity and disclosure of certain facts by State authorities had been deliberate were not pursued on appeal. It noted that embargoed police or prosecution service briefings were commonplace in major trials and that no challenge was made to the propriety of the press briefings. It also reviewed the actions of the prosecution and the Attorney General. The court then turned to consider in detail the ruling of Henriques J of 8 December 2008 and expressed itself to be “entirely satisfied” that he had not only applied the correct principles but had come to a conclusion that was open to him, namely that a fair-minded observer would consider that a jury, properly directed, could fairly try the applicant. It explained: “104. Not only do we consider that conclusion open to him but we also consider that that conclusion was correct. We accept ... that trying the case elsewhere was not an option; asking potential jurors about their knowledge of the case again was not an option. However, we do consider that, given the trial process and the months that had elapsed before the second trial, the informed observer would be satisfied that a jury would consider fairly and impartially the evidence and would have no regard to the publicity to which we have referred.” 50. The court added: “105. We have also taken into account the fact that, unlike the decisions in Abu Hamza and Montgomery v HM & Another [2003] 1 AC 641 [see paragraphs 60-61 below], this was not a case concerned with pre-trial publicity but with publicity following a conviction. The fact that it was a trial following a conviction on one count in our view is an important factor that may be viewed as more significant than pre-trial publicity. However, looking at the matter overall, we consider that the trial process could ensure a fair trial and a fair-minded observer would think that as well.” 51. On 16 November 2011 the Court of Appeal declined to certify that the applicant’s case raised a point of law of public importance.