R v Abdulla Ahmed Ali and Others

JurisdictionEngland & Wales
JudgeLord Justice Thomas
Judgment Date19 May 2011
Neutral Citation[2011] EWCA Crim 1260
Docket NumberCase Nos: 2009/05247/B5, 2009/05250/B5, 2009/05248/B5, 2009/05249/B5, 2010/04187/B5, 2010/04288/B5, 2010/04307/B5 & 2010/00102/B5
CourtCourt of Appeal (Criminal Division)
Date19 May 2011

[2011] EWCA Crim 1260

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT WOOLWICH

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Thomas

Mr Justice Macduff

and

Mr Justice Sweeney

Case Nos: 2009/05247/B5, 2009/05250/B5, 2009/05248/B5, 2009/05249/B5, 2010/04187/B5, 2010/04288/B5, 2010/04307/B5 & 2010/00102/B5

Between:
Regina
Respondent
and
Abdulla Ahmed Ali and Others
Appellants

Mr Joel Bennathan QC* and Mr Martin Huseyin* for the Appellant (Tanvir Hussain)

Mr Malcolm Bishop QC and Ms Frida Hussain for the Appellant (Sarwar)

Mr T Moloney QC* and Mr Martin Huseyin* for the Appellant (Ali)

Mr Lawrence J McNulty for the Appellant (Islam)

Mr Joel Bennathan QC and Mr Peter Wilcock for the Appellant (Arafat Khan)

Mr Lawrence J McNulty* and Mr O Osman for the Appellant (Savant)

Mr James Wood QC and Mr M Summers for the Appellant (Zaman)

Mr David Spens QC for the Applicant (Nabeel Hussain)

Mr Peter Wright QC and Ms A Ezekiel for the Respondent

* They did not appear at the trial for the particular appellant

Hearing dates: 16, 17, 21, 22, and 24 February 2011

Approved Judgment

Lord Justice Thomas
1

In August 2006 police in the UK, with the assistance of intelligence services and police forces in other states, uncovered a plot which was alleged to involve the detonation of improvised explosive devices (IEDs) on a number of transatlantic airliners by suicide bombers with the intention of causing massive loss of life on transatlantic flights.

2

Eleven people were originally indicted and sent for trial at the Crown Court at Woolwich. After trials before Calvert-Smith J, Henriques J and Holroyde J and a further trial before Calvert-Smith J, eight were convicted of conspiracy to murder and two of lesser offences. All of those convicted in the trials before Henriques J and Holroyde J sought leave to appeal against conviction; some sought leave to appeal against sentence. The Registrar referred all the applications to the Full Court.

3

After a hearing extending over four days we have granted leave to appeal against conviction on the following:

i) The principle that a person should not be tried twice for the same crime ( autrefois convict, autrefois acquit);

ii) Abuse of process – re-trying those appellants convicted at the first trial for substantially the same offence and whether there could be a fair trial in the light of the media publicity after the first trial;

iii) Whether in the light of all the circumstances the proceedings should have been stayed prior to the third trial either as not being in the interests of justice or an abuse of process;

iv) Whether a direction should have been given when two of the jurors had to be discharged whilst the jury were considering their verdict in the third trial.

We have, however, for the reasons set out in this judgment dismissed the appeals. At paragraph 26 below we set out the issues in greater detail and the order in which they are considered in this judgment. There were other grounds on which we have refused leave and which we will deal with more briefly.

THE COURSE OF THE TRIALS AND THE EVENTS THAT GIVE RISE TO THE APPEALS

4

Many of the issues in the appeal have their origin in an amendment to the indictment made during the course of the first trial. It is necessary therefore to explain at the outset the course of the trials.

(i) The original indictment

5

The indictment on which the defendants were charged alleged that between 1 January 2006 and 11 August 2006:

i) Count 1: Conspiracy to murder. The persons indicted "conspired together and with others to murder persons unknown".

ii) Count 2: Conspiracy to commit an act of violence likely to endanger the safety of an aircraft. The persons indicted "conspired together with others to commit an act of violence, namely an explosion on board an aircraft in flight likely to endanger the safety of the said aircraft".

(ii) The first trial before Calvert-Smith J: 4 April 2008 to 8 September 2008

6

On 4 April 2008 a trial of eight (Ali, Sarwar, Tanvir Hussain, Gulzar, Savant, Arafat Khan, Zaman and Islam) began before Calvert-Smith J on that indictment. The indictment had been severed for three (Khatib, Nabeel Hussain and Uddin); their trial is described at paragraph 24 below. The Crown's primary case as opened in relation to count 1 was that all had been engaged in a conspiracy to murder by detonating IEDs on transatlantic airliners. The alleged roles were as follows: Ali was the leader of the conspiracy, Tanvir Hussain was his right hand man and Sarwar was the expert at making the IEDs; Islam, Savant, Zaman and Arafat Khan were to carry the devices aboard and die with the passengers; they had made so called "martyrdom" videos. It is not necessary to identify the case against Gulzar as he was acquitted. Count 2 was intended to reflect an alternative case, namely a conspiracy to place bombs that might damage aircraft.

7

The case against Ali, Sarwar and Tanvir Hussain was primarily based on the following:

i) Ali, Hussain and Sarwar had travelled to Pakistan, particularly in 2006.

ii) Ali had obtained the use of a flat at 386A Forest Road, Walthamstow which was subsequently used for filming martyrdom videos and the production of detonators.

iii) About 40 litres of hydrogen peroxide and other items useful in the manufacture of IEDs had been obtained; this was sufficient to make 20 IEDs.

iv) Plastic bottles had been prepared for the surreptitious insertion of explosive material disguised as soft drinks so that they could be carried onto aircraft. The seal of each bottle had been left intact to avoid detection at airport security.

v) The necessary ingredients for the manufacture of HMTD (which was to be used in the manufacture of detonators) had been acquired; there was sufficient to make 20 detonators.

vi) At least two prototype detonators had been manufactured in order to train the bombers.

vii) Ali had researched flight timetables for flights to the USA and downloaded timetables.

viii) In the case of Ali and Hussain, suicide videos, ostensibly explaining their participation in a suicide mission, had been recorded.

ix) Ali and Sarwar had been in telephone, text and coded e-mail contact with unidentified people in Pakistan.

x) By 8 August 2006, Ali had selected the seven flights that were to be destroyed – flights to Chicago, New York, Montreal, San Francisco and Washington.

xi) All that remained to be done when the plot was uncovered was for the hydrogen peroxide to be reduced, flight tickets acquired and the bombs to be assembled

8

The case against Islam, Savant, Khan and Zaman was based primarily upon:

i) "Martyrdom" videos.

ii) Contacts with Ali and Sarwar.

iii) Possession of extreme material.

9

None of the defendants provided a meaningful defence statement; the nature of their defence was only apparent from what was put in cross examination. It became clear that it was being suggested by three of the defendants (Ali, Sarwar and Hussain) that any conspiracy was a conspiracy to cause an explosion at one iconic location (such as Parliament, the City or an airport terminal) or in a café where although life would be endangered, it was not part of the plan that anyone be killed, or if any were, the numbers would be few.

(ii) The amendment to the indictment in June/July 2008

10

At the conclusion of the prosecution case, submissions were made on behalf of Islam and Zaman (who had made "martyrdom" videos) that there was no case to answer on count 1 as the Crown were only making a case of a conspiracy to murder by detonating IEDs on transatlantic aircraft. It was argued that, on the prosecution evidence, they may have been engaged in a conspiracy to cause explosions or even to murder (and been prepared to die in carrying out the murder), but not through detonating IEDs on transatlantic aircraft.

11

Baroness Kennedy QC who then appeared for Arafat Khan made no submission of no case to answer on his behalf. However in the course of the submissions of no case made on behalf of Islam and Zaman, she raised the question of whether the jury should be entitled to make a finding which indicated whether, in respect of each defendant, the jury accepted the Crown's case of murder through the detonation of IEDs on aircraft or a conspiracy to murder in general (such as murdering a small number in a café). As she developed her submissions, she contended that justice required a distinction be made. Calvert-Smith J indicated that if the counts went before the jury in their current form, the defence might seek to ask him to ask the jury for a special verdict or the basis of any verdict of guilty – conspiracy to murder by detonating IEDs on aeroplanes or murder in general. His view was that this would be an issue that had to be resolved in the light of all the evidence.

12

The judge gave his decision that same day. He ruled that there was a case to answer on the basis that each was a party to a conspiracy to murder by detonating IEDs on aircraft; he would give his detailed reasons later. Immediately he had given the ruling, Mr Wood QC for Zaman asked the question as to whether there could be alternatives between the conspiracy to murder alleged and a different conspiracy to murder. The judge made clear that counsel should consider the issue and he would give it further thought.

13

On 2 June 2008, Calvert-Smith J gave his reasons for his ruling that there was a case to answer. He added that the issue raised by Baroness Kennedy would be considered further. On 9 June 2008, the Crown put forward its proposal to amend the indictment to address that issue and in July 2008 submissions were made on the issue; we refer to this in more detail at paragraph 53 and following. In the result no one objected to the Crown's proposal to amend the indictment:

i) Count 1 became count...

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