Manfo Kwako Asiedu v The Queen

Hearing dates: 9th and 10th February 2015

The applicant renews his application for leave to appeal against his conviction for conspiracy to cause explosions likely to endanger life or to cause serious injury to property, after refusal by the single judge. He had pleaded guilty to this offence at his re-trial in November 2007. He had previously been tried together with others on an indictment charging both conspiracy to murder and this offence, arising from the same alleged conduct. At the end of a long trial in July 2007, the jury had convicted others, but had been unable to agree about this applicant. Upon his plea of guilty to this offence at the outset of the re-trial, the Crown did not ask for a re-trial of the graver alternative count, nor of count four which charged possession of an explosive substance with intent. His contention that his conviction is unsafe is grounded upon complaints of lack of proper disclosure by the Crown of material relating to scientific evidence, and associated criticism of the evidence of one of the scientists called by the Crown at the effective (first) trial.

The charges against this applicant and his five co-accused arose out of the taking of home-made bombs onto the London Transport system on 21 July 2005. That was two weeks after terrorist suicide bombers had exploded bombs on underground trains and a bus on 7 ^th July, causing some fifty-two deaths. The case against the applicant and his co-accused was that they had similarly taken home-made bombs onto underground trains and buses. The bombs were contained in rucksacks, and were triggered by battery-driven electric devices which fired home-made detonators when an electric circuit was completed by the wearer. On 21 July there were five such bombs, taken separately by five of the six defendants from a common starting point in west London onto either trains or buses. Four of those devices were activated by four of the applicant's co-accused, called Omar, Osman, Mohammed and Ibrahim. Omar activated his on a Victoria Line train in the tunnel approaching Warren Street Station. Osman activated his on a train near to Shepherd's Bush station. Mohammed activated his device on a northern line train between Stockwell and the Oval. Ibrahim activated his on a number 26 bus in Hackney. In each of these cases, the electric circuit when completed successfully fired the home-made detonator, but the detonator did not set off the bulk charge. There was a bang, and some resultant confusion, but no major explosion. The fifth device was carried by Asiedu. He abandoned it in some parkland in Little Wormwood Scrubs.

The Crown case was that this was a plot to explode bombs which would kill. The devices, which were recovered, were all of the same construction. The bulk charge (which failed to explode) was made of domestic ingredients, flour and hydrogen peroxide. The detonators were all the same, comprising high explosive primers made from household materials publicly available. The electric firing devices were again the same and similarly home-made. Packed around the bulk charges was shrapnel, in the form of bolts, screws, washers or tacks, such as would increase the injuries in the event of explosion. Because in the event the bulk charges did not explode, the carriers were able initially to escape in the confusion, but some could be seen, undisguised, on CCTV and one had left clear evidence of his identity in his rucksack. They were arrested one by one in Birmingham, London and Rome. The police rapidly identified two London flats as having been used by them, one at Curtis House in north London and one in the west at Dalgarno Gardens near Ladbroke Grove.

Asiedu when arrested gave long police interviews. What he said was very largely untruthful; he lied about who he was and about knowing the other defendants; he said he knew nothing at all about the bombs; he denied having anything to do with buying the hydrogen peroxide. As to the day when the bombs were set off, he asserted a false alibi. A police officer had to go to Ghana to establish the truth about his identity.

In the weeks and months after the arrests, the police were able to assemble clear evidence that Asiedu had been instrumental in the purchase of some 442 litres of hydrogen peroxide from several different suppliers, lying to the sellers about the purpose for which it was required. He was shown to have asked for 70% concentration if available, but ordinarily the product is sold only at 18%, and that is what he had been able to get. There was then evidence from Curtis House that the peroxide had been cooked in the kitchen, and concentrated from this 18% solution. There were rotas for this cooking duty, and notes of the specific gravity achieved, which indicated a strength in the region of 70%. There was much other evidence uncovered connected with the construction of the bombs by the defendants.

Sometime towards the end of 2006, over a year after the event and when the trial was imminent, the first four defendants (but not Asiedu) served amended defence case statements. In them, they asserted for the first time that they had indeed made the bombs, but that they had always intended that they should not explode; rather they were hoaxes intended to frighten or to make a political statement about UK actions in Iraq. The trial had to be delayed for this hoax assertion to be investigated. Much later, during the trial, the other defendants, through Ibrahim, advanced a further assertion not previously contained in their defence statements, namely that they had concentrated the hydrogen peroxide to about 70%, but having done so, watered it down by adding an equal volume of water, thus reducing the strength to around 35%. It was their positive case that the bombs were constructed of a mixture of flour and hydrogen peroxide, in proportions of roughly 1:2.

At a late stage in the trial Asiedu went to some lengths to distance himself from the other defendants. Inconsistently with his previous stance, and with a letter which he had written to Ibrahim's sister whilst awaiting trial saying that all the defendants were totally innocent, his case underwent a sea change after the Crown case was closed and Ibrahim had given evidence in chief. His case as put to Ibrahim in cross examination was that Ibrahim had, personally and via his solicitors, put pressure on him in prison to change his solicitor and to adopt the hoax defence. Consistently with his instructions, leading counsel roundly attacked the hoax assertion as absurd. By contrast, his defence, which he supported by evidence on oath, was that there had been a plan to make real bombs, but that he had learned of it only the night before they were deployed, and he was never a party to it. He had earlier bought the hydrogen peroxide innocently, believing that the others were using it for painting and decorating, or, later, that they were making cosmetics. Later Ibrahim had told him that the others were making "firecrackers", but he was never party to such a plan. On the night before the bombs were detonated he was with the others in Dalgarno Gardens and realised for the first time that they were talking about a suicide bombing mission and expected him to take part. He was afraid to voice his disagreement because the others were now seen to be terrorists who would kill him, so he bided his time, and when once separated from them, abandoned his device in the park in Little Wormwood Scrubs.

After the jury disagreed in his case, but had convicted the first four defendants, Asiedu was re-tried some four months later. At the outset of his re-trial, having sought in open court information from the judge as to the range of likely sentence in such event, he pleaded guilty to the lesser alternative count of conspiracy to cause explosions likely to endanger life or to cause serious damage to property. The tendering of this plea of guilty followed detailed discussions between his lawyers and those acting for the Crown. He asserts that the Crown initiated them, but it does not matter who did so; he was represented then, as now, by tenacious leading and junior counsel plus solicitors. Prior to tendering his plea, a detailed statement of the factual basis for it was prepared on his behalf, discussed with the Crown, and submitted to the judge so that a sentence indication might be given. It ran to three pages. In it he said (amongst other things) that:

i) he had agreed in March 2005 to take part in making bombs by buying the hydrogen peroxide; he was reluctant but did as asked; he appreciated that any explosion of the bombs would be likely to endanger life and that he thus committed the offence charged in count 2 from March 2005;

ii) at this time he was living at Curtis House with Omar, as he was for the majority, but not all, of the period from March to the deployment of the bombs in July; he had been aware of the cooking of the hydrogen peroxide in the kitchen; he had not personally taken part in this activity, but continued to buy the peroxide for the process; and

iii) at Dalgarno Gardens overnight on 20/21 July he had learned of a planned suicide mission the next day; he had refused to be one of the suicide bombers but had helped to mix the materials to make one of the five bombs.

On 20 November...