Abdurahman v R

A finding by the Strasbourg Court that a criminal trial breached European Convention on Human Rights article 6 does not automatically make the resulting conviction unsafe. The appellate court must assess the nature of the breach and the quality and strength of the evidence independently supporting guilt.

Under section 2 of the Human Rights Act 1998, Strasbourg judgments must be taken into account when relevant. A domestic court will usually follow clear and constant Strasbourg jurisprudence, but may depart where the context justifies it and the reasoning misunderstands a material feature of domestic procedure.

Evidence discovered after an improperly conducted but non-coercive interview is not automatically inadmissible. Where compelling independent evidence establishes guilt, the conviction may remain safe even if an article 6 breach is assumed.

The appellant was convicted at Kingston-upon-Thames Crown Court of assisting an offender and of failing to give information about acts of terrorism. The prosecution relied in part on a written statement obtained while he was questioned as a witness after police had grounds to suspect him, without a caution or legal advice.

His first appeal against conviction was dismissed in R v Sherif and others [2008] EWCA Crim 2653, although his sentence was reduced. The Grand Chamber of the European Court of Human Rights later found a violation of article 6 in his case. The Criminal Cases Review Commission referred the conviction back to the Court of Appeal.

The central issue was whether the Strasbourg finding, the admission of the statement, and the remaining evidence rendered the conviction unsafe.

1. Appeal dismissed. The court’s statutory task was to decide whether the conviction was unsafe, rather than to redetermine whether there had been a violation of article 6. A Strasbourg finding of unfairness does not inevitably make a conviction unsafe. The necessary assessment concerns the kind of breach and the nature and quality of the evidence.

2. The Grand Chamber’s decision had to be taken into account under section 2 of the Human Rights Act 1998, but did not bind the court. The court accepted that Strasbourg jurisprudence will usually be followed. It held, however, that the degree of constraint is context-specific and that the Grand Chamber’s reasoning had misunderstood the relevance, in domestic proceedings, of the absence of evidence from the senior police officer.

3. There were compelling reasons for the temporary restriction on access to legal advice. The appellant was providing information capable of locating a man believed to have detonated a bomb and potentially to pose an immediate further danger. The absence of a record or direct evidence of the senior officer’s reasons did not contribute to unfairness, because the deliberate breach of PACE Code C was accepted and no further case of bad faith had been advanced.

4. In any event, if there had been no compelling reasons and a presumption of irretrievable prejudice applied, it was rebutted. The appellant attended voluntarily, was free to leave, was not coerced, and was not given an unequivocal assurance that he would not be prosecuted. After receiving legal advice, he did not retract the First Statement, affirmed its essential elements, relied on it at trial, and relied on his assistance to police in his sentence appeal. The safeguards in sections 76 and 78 of the Police and Criminal Evidence Act 1984, the voir dire, jury directions, and appellate review were material safeguards.

5. Real evidence found by following leads from the First Statement was not automatically inadmissible. The article 3 exception did not arise. Assessed independently of the First Statement, the CCTV, telephone, cell-site, fingerprint and witness evidence supplied an overwhelming case and an irresistible inference of guilty knowledge. The conviction was therefore safe even on the assumption that the trial had been irretrievably prejudiced for article 6 purposes.

6. Leave to raise fresh complaints about the jury directions was refused. They were outside the CCRC reference, could and should have been advanced in 2008, and disclosed no error or unfairness.

• Court of Appeal (Criminal Division): On a CCRC reference, dismissed the renewed appeal against conviction: [2019] EWCA Crim 2239.
• European Court of Human Rights, Grand Chamber: Held that the appellant’s proceedings violated article 6, but stated that this did not establish that he had been wrongly convicted.
• Court of Appeal (Criminal Division): Dismissed the appeal against conviction but reduced the total sentence from 10 to 8 years: R v Sherif and others [2008] EWCA Crim 2653.
• Crown Court at Kingston-upon-Thames: Convicted the appellant on 4 February 2008 and imposed a total sentence of 10 years’ imprisonment.