Ibrahim & Ors, R v

Evidence obtained in a properly authorised safety interview is not subject to categorical exclusion merely because access to legal advice was delayed. The trial judge must determine fairness under Police and Criminal Evidence Act 1984, section 78, in the circumstances of the individual case.

The restriction on adverse inferences where legal advice has been denied prevents reliance on silence. It does not itself make answers given during interview inadmissible. A co-accused cannot challenge the reliability of another accused’s confession where it is admitted only against its maker and is irrelevant to the co-accused’s case.

After a lengthy trial at Woolwich Crown Court before Fulford J and a jury, Ibrahim, Omar, Osman and Mohamed were convicted of conspiracy to murder arising from the attempted bombings on London transport on 21 July 2005. Each received life imprisonment with a recommended minimum term of 40 years.

The applicants sought leave to appeal against conviction. Mohamed and Osman also sought leave to appeal against sentence. The principal issues concerned the admission of safety interviews conducted before access to solicitors, allegations involving a solicitor representing co-defendants, the limited admission of Osman’s prison confession, and fresh evidence arising from Asiedu’s later guilty plea.

1. Applications refused. The convictions were safe and the life sentences, including the 40-year recommended minimum terms, were justified.

2. Safety interviews were not subject to a public-policy rule preventing their later use. The statutory scheme permitted interviews before legal advice where the relevant urgent conditions were met. Their admissibility remained governed by the ordinary requirements of a fair trial and by section 78 of the Police and Criminal Evidence Act 1984. Fairness depended on the warning given, the purpose and conduct of the interview, the nature of the material obtained, and the circumstances of the particular detainee.

3. Section 34(2A) of the Criminal Justice and Public Order Act 1994 prevented adverse inferences from silence where a detainee had not had an opportunity to consult a solicitor. It did not render inadmissible answers actually given during questioning. The incorrect use of the caution capable of inviting adverse inferences did not itself make the interviews unfair. The applicants understood that what they said could be used in evidence, were not coerced, and gave deliberate exculpatory lies rather than incriminating answers. The trial judge was entitled to admit the interviews after considering Article 6 fairness.

4. Any breaches of the applicable code did not automatically make subsequent police conduct unlawful so as to require exclusion. In Ibrahim’s case, the wrongful denial of telephone access to the duty solicitor was of low significance. In each case the judge was entitled to find that the brief, safety-focused interviews were fairly conducted and relevant to the credibility of the later hoax defence.

5. Osman’s prison remarks were admissible against Osman and, at Asiedu’s instance, for Asiedu’s case. They were irrelevant to the other applicants. Applying R v Pereira [2001] EWCA Crim 1020, those applicants had no basis to cross-examine prison officers or introduce material to impeach the confession’s reliability. Section 76A of the Police and Criminal Evidence Act 1984 protected the maker of a confession; it created no new right for a co-accused against whom the confession was inadmissible.

6. The court also rejected the proposed hearsay route. R v Y [2008] EWCA Crim 10 confirmed that section 114(1) of the Criminal Justice Act 2003 provides alternative routes to admissibility, but there was no basis to admit Osman’s confession against the other applicants in the interests of justice.

7. Asiedu’s later guilty plea did not undermine Osman’s conviction. The jury already knew that Asiedu had lied extensively, and the independent evidence against Osman was powerful. The alleged errors concerning counsel and the allegations against Ms Arani were unarguable. For sentencing, any earlier distinctions in role had ceased to matter when each applicant acted with the common intention of mass murder.

• Court of Appeal (Criminal Division): Refused the applicants’ applications for leave to appeal against conviction and, for Mohamed and Osman, sentence.
• Crown Court at Woolwich: Fulford J and a jury convicted Ibrahim, Omar, Osman and Mohamed of conspiracy to murder. Each was sentenced to life imprisonment with a recommended minimum term of 40 years.