Out of Many, One? Strasbourg's Ibrahim Decision on Article 6

DOIhttp://doi.org/10.1111/1468-2230.12305
Publication Date01 Nov 2017
AuthorRyan Goss
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CASES
Out of Many, One? Strasbourg’s Ibrahim Decision
on Article 6
Ryan Goss
This case comment considers the European Court of Human Rights decision of Ibrahim v
United Kingdom on 13 September 2016. Relying on Salduz vTu r k e y , the applicants claimed,
largely unsuccessfully,that denial of access to a lawyer during police questioning, and subsequent
admission into evidence of statements made in the course of that questioning, violated fair trial
rights protected by Article 6 of the European Convention on Human Rights. The comment
suggests that the decision’s unusually emphatic statements about Article 6’s ‘internal structure’
have consequences for assessing violations in future applications. Further, the decision creates
greater room for public interest balancing in Article 6 cases. The decision may thus undermine
the Article 6 guarantees.
This case comment considers the recent decision of the Grand Chamber of
the European Court of Human Rights in Ibrahim and Others vUnited Kingdom
(Ibrahim).1The decision concerned the availability of legal advice during police
questioning of suspects linked to unsuccessful terrorist attacks in London in
2005.
A majority of the European Court of Human Rights (ECtHR) held that
Article 6 of the European Convention on Human Rights (the ECHR) was not
violated by three applicants’ lack of access to a lawyer dur ing police questioning
or by the subsequent admission into evidence of statements made in the course
of that questioning. The ECtHR did find a violation of Article 6 with respect to
a fourth applicant, questioned in different but related circumstances. In addition
to the majority judgment in Ibrahim, there were six other judgments: one
concurring, one partly concurring and partly dissenting, two partly dissenting,
and one dissenting.
The ECtHR’s Ibrahim decision is significant because it offers unusually em-
phatic statements about the ‘internal structure’2of Article 6, with consequences
for future assessments of alleged Article 6 violations. It is on these develop-
ments that this case comment will focus. In particular, in Ibrahim a majority of
Senior Lecturer, Australian National University, Canberra. My thanks to Dr Miles Jackson and to
the anonymous reviewerfor comments on earlier drafts. I also thank Professor Andrew Ashworth and
Associate Professor Liora Lazarus for comments on related research projects. The usual disclaimers
apply.
1Ibrahim and Others vUnited Kingdom App nos 50541/08, 50571/08, 50573/08 and 40351/09
(ECtHR Grand Chamber, 13 September 2016). The Chamber (Fourth Section) decision was
Ibrahim and Others vUnited Kingdom (2015) 61 EHRR 9.
2 See R. Goss, Criminal Fair Trial Rights (Oxford: Hart, 2014) 65–88; cf S. Trechsel, Human Rights
in Criminal Proceedings (Oxford: OUP, 2005) 210.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017) 80(6) MLR 1137–1163
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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