Euro Rights Blog: Eurosceptic Exaggeration – The Latest in the Telegraph’s Continuing Campaign Against the ECHR

The Sunday Telegraph’s campaign against the ECHR and Human Rights Act continued unabated this weekend (3 November 2013). This time the focus of concern was the alleged possibility that Abdulla Ahmed Ali was ‘seeking to have his conviction overturned on human rights grounds.’ At one point the story ‘Al-Qaeda terrorist begs Europe for freedom’ was the most read story on the paper’s website. For the Telegraph this sort of story has become a staple of its anti-European reporting – a wholly undeserving criminal defendant seeking to evade British justice using European law. Of course, as with all these reports, a more thorough examination reveals the true picture.

The Telegraph report focuses principally on the application of Abdulla Ahmed Ali to the European Court. Ali was convicted of offences arising out of the plot to explode homemade bombs on transatlantic flights. Ali’s first trial ended with the jury convicting him of conspiracy to murder (Count 1A on the indictment) though it was unable to reach a verdict on the other counts principally conspiring ‘together to murder persons unknown by the detonation of [IEDs] on board transatlantic passenger aircraft’ (Count 1). At a subsequent re-trial Ali was also convicted of Count 1. Ali appealed to the Court of Appeal on the basis there had been an ‘avalanche of objectionable material’ (in the words of the trial judge) between the trials that had a prejudicial effect on the fairness of the trial.

The Court of Appeal dismissed Ali’s appeal (R v Ali [2011] EWCA Crim 1260). Lord Justice Thomas held that taking of the verdict on Count 1A by the trial judge did not make ‘it in any way unfair to hold a second trial’ [para 82]. Ali also argued that it was an abuse of process to try him a second time because the adverse publicity meant that it was not possible to empanel an impartial jury for the purposes of Article 6 ECHR.

Unlike previous cases such as R v Abu Hamza [2006] EWCA Crim 2918  and Montgomery v Lord Advocate [2003] 1 AC 641 this was not a case concerned with pre-trial publicity but with publicity following a conviction. The Court of Appeal while recognising this important distinction nonetheless concluded that ‘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’ [para 104]. The rigour of the trial process and superintending role of the trial judge, exercised principally through directions, offered sufficient safeguards to ensure the impartiality of the jury.

Subsequently, Ali and his co-defendants applied to the European Court (Ali v UK [2013] ECHR 30971/12). And it is the admissibility proceedings that are the focus of the Telegraph’s story. Of the co-joined applications all but Ali’s were dismissed on procedural grounds. In Ali’s case the application was not dismissed but adjourned because the Chamber could not ‘on the basis of the case file, determine the admissibility of the first applicant’s complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.’ In other words, the Court is seeking further information from the UK government. It is tempting in this situation to simply say ‘so what?’ The Court receives thousands of applications a year, the vast majority of which are declared inadmissible. The European Court may therefore decide that on receiving this further information that the application is inadmissible.

But it is possible, as the Telegraph claims, that the Court might go on to find a violation of Article 6 if and when it examines the merits of the application. If so the paper concludes ‘it would open the way for him and his fellow plotters to launch a new bid in the British courts to have their convictions quashed, using the European ruling to convince British judges that their convictions are “unfair”’. However, even an adverse finding by the European Court would not necessarily lead to the conviction being quashed. The sole criterion for allowing an appeal in English law is whether the conviction is ‘safe’. Thus it is possible, though rare, that a verdict following an unfair trial may be safe and the appeal dismissed (For instance there is incontrovertible proof of guilt. See R v Lewis [2005] EWCA Crim 859 dismissing an appeal brought following the finding of a violation of Article 6 ECHR in Edwards & Lewis v UK [2004] 39647/98). Moreover, not every finding of a violation of Article 6 ECHR will entail that the applicants were wrongly convicted. For this reason the Court sometimes refuses to award just satisfaction (damages) in cases involving Article 6.

That said in the context of domestic law the Court of Appeal has said that it is unable to ‘envisage any circumstances in which, an Article 6 breach having arisen from want of independence and impartiality in the tribunal, it would be possible to conclude that the conviction is safe.’ R v Dundon [2004] EWCA Crim 621. No doubt in these circumstances the Court of Appeal would need to revisit its previous decision in Ali. But it would not be the first time that a conviction has been quashed for adverse publicity (R v Taylor [1994] 98 Cr App R 361).

The Telegraph reports Dominic Raab MP as arguing that ‘Strasbourg should not be giving succour to one of the most dangerous terrorists to threaten Britain in recent memory … this kind of case brings the European Court into disrepute, and only strengthens the case for reform, if Britain is going to continue to stay within its jurisdiction.’ Perhaps it is not surprising that a politician, even a legally qualified one, would make such remarks. But even English law takes a different view. ‘A man undoubtedly guilty of murder,’ observed Scrutton LJ in 1923, ‘must be released if the due forms of law have not been followed in his conviction … it is quite possible, even probable, that the subject in this case is guilty of high treason; he is still entitled only to be deprived of his liberty by due process of law.’ (R v Secretary of State for Home Affairs ex parte O’Brien [1923] 2 KB 361)

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