Human rights judges reject fairness complaint over reporting pre-retrial
A man convicted of a terrorism charge following a retrial in the English courts has failed in a complaint to the European Court of Human Rights that prejudicial media publicity infringed his Convention right to a fair trial.
Abdulla Ali had been tried with others on counts of conspiracy to murder and other offences connected with an alleged plot in 2006 to detonate explosives on board a transatlantic passenger aircraft by suicide bombers. He was convicted on one charge of conspiracy but the jury was unable to reach a verdict on another, or on certain charges against co-accused. The verdict was widely reported, with reference to material not presented in evidence but disclosed to the media ahead of the verdict, and with criticism of the jury for being unable to reach a verdict on the count in question.
The Crown announced its intention to seek a retrial, but reporting continued for some days afterwards. An application to stay proceedings was refused, despite what the judge described as the "avalanche of objectionable material" founded on, and the retrial began about five and a half months after the first verdict. After a lengthy trial the applicant was convicted of the charge against him and various verdicts were returned on the other charges.
Before the Human Rights Court the applicant argued that the particular circumstances surrounding the ending of his first trial produced the real possibility that a particular view of the core evidence and issues might persist in, and predispose, the minds of the jury at the retrial. There were no steps which could have been taken to counter the danger of bias in his case. In particular, judicial directions were inadequate and a far greater retrospective analysis of the potential prejudice should have been carried out. The Crown had taken no steps to prevent the reporting that had taken place; prohibited material had been disseminated to the media, which had acted without restraint; research indicated that juries were likely to recall media coverage; and material released suggested that the applicant was far more deserving of conviction for reasons that the jury had not been permitted to know.
In its unanimous ruling by a seven judge chamber, the court said that there was "no suggestion that the applicable legal framework was defective as regards the safeguards provided with a view to ensuring a fair trial in circumstances – such as occurred in the present case – of adverse publicity following a trial and preceding a retrial". The question was whether the steps taken by the trial judge were sufficient in the circumstances.
Once the jury had been selected, the judge gave a lengthy direction in which he alluded to prior “inaccurate and unsatisfactory reporting” and emphasised that the jury had to decide the case on the evidence heard in court and nowhere else. He repeated the warnings during the trial, in his summing up and each evening while the jury deliberated. The application for a stay had also been properly considered at first instance and on appeal.
"There is nothing in the circumstances of the case to suggest that the jury could not be relied upon to follow the judge’s instructions to try the case only on the evidence heard in court", the court concluded. "The fact that the jury subsequently handed down differentiated verdicts in respect of the multiple defendants in the retrial proceedings... supports the trial judge’s conclusion that the jury could be trusted to be discerning and to ignore previous media reports and, consequently, decide the case fairly on the basis of the evidence led in court."