R v Abu Hamza
| Jurisdiction | England & Wales |
| Judge | SIR IGOR JUDGE |
| Judgment Date | 28 November 2006 |
| Neutral Citation | [2006] EWCA Crim 2118,[2006] EWCA Crim 2918 |
| Docket Number | No: 200601143/C5,Case No: 2006/01143/C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 November 2006 |
[2006] EWCA Crim 2118
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Sir Igor Judge
(president Of The Queen's Bench Division)
Mr Justice Gray
Mr Justice Mccombe
No: 200601143/C5
MR E FITZGERALD QC appeared on behalf of the APPLICANT
This is a renewed application for leave to appeal against conviction by Mustafa Mustafa, otherwise known Abu Hamza, otherwise known as Abu Hamza al Masri. On 7th February, in the Crown Court at Woolwich before Hughes J (as he then was) and a jury, he was convicted of six counts of soliciting to murder, three counts of using threatening abusive or insulting words or behaviour with intent, or words likely to stir up racial hatred, one count of possessing threatening, abusive or insulting recordings and one count of possession of a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism. The total sentence imposed was 7 years' imprisonment.
The jury acquitted the appellant of three counts of soliciting to murder and of one count of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred.
It is sufficient for present purposes to identify the rival contentions. This applicant was at all material times the Imam of the Finsbury Park Mosque. During a period of about 3 to 4 years, between 1997 and 2000 or thereabouts, he delivered a number of speeches, lectures and sermons. The case for the prosecution was that in the course of those speeches and sermons he incited people to murder those whom he, the applicant, regarded as not true believers. He was also alleged to have said words which were such as to incite racial hatred against Jewish people.
He was arrested following an extradition arrest warrant issued at the behest of the United States government in May 2004. His home was searched. Ten volumes of the Encyclopaedia of Jihad and a large number of audio and video tapes featuring some of his speeches and sermons between 1997 and 2000 were seized. Some of them became evidence in the case. It is a feature of the submission to us that a substantial proportion of that material had been known about and to the police by 2000.
The defence case was that his words did not incite others to murder, nor did he incite racial hatred, and he did not intend the words that he used to produce either result. At times he was speaking in a way which was repeating or reconstructing, in a theological way, what the Quaran had said. At other times the words that he was using were expressed in discussion on abstract theory. At times when he spoke of killing, he was really arguing that a system of government or a social order should be brought to an end, rather than that any individual should be killed. The only occasions when he would contemplate anyone actually being killed was if that person because involved in a fight in which he or she was doing the threatening. He wished that Muslims should stand up for themselves. He wanted those who lived in the United Kingdom to go back to their own countries and work there towards an Islamic State. If he was ever critical of Jews, it was not because he was inciting or intending to incite racial hatred; he was not critical of them because they were Jews but only because their actions, which were wrong according to the law of Islam, or caused harm to Muslims.
There was in fact no real dispute about the material. The question for the jury was whether or not, considering all the material, the Crown had established the different counts alleged.
A substantial number of grounds of appeal have been drawn to our attention by Mr Edward Fitzgerald QC, on behalf of the appellant. We can give our conclusion very briefly and the conclusion we have reached means it will be sensible for us to be sparing in what we have to say. We do not wish to raise any false optimism in the appellant. Nevertheless, in our judgment, there are a number of grounds drawn to our attention by Mr Fitzgerald which are arguable and should go to a full hearing.
We begin with ground 6. Ground 6 raises a pure point of law which arises from the proper construction of section 4 of the Offences Against the Person Act 1861, and which it is right to record is not free from difficulty or controversy. As it seems to us, the Full Court should consider the true ambit of section 4, and whether the solicitation of non-citizens to act so as to murder foreigners abroad is justiciable.
So far as grounds 1 to 5 are concerned, again, we take the view that they raise issues which are arguable.
It is unnecessary to go through the details of the publicity which this case, or this appellant, has attracted. In our judgment, the impact of the pre-trial publicity and the publicity, during the trial itself, on the fairness of the proceedings generally, should be considered by the Full Court, with particular reference to the fact that the crimes of which the appellant was convicted took place before 2000 and the decision to prosecute him was delayed until 2004. Mr Fitzgerald should be free to develop all his submissions arising under those grounds.
Our conclusion is that the remaining grounds of appeal are unarguable. We shall deal with them very briefly. Ground 7 alleged that there was insufficient evidence that murder had indeed been incited and that the judge wrongly rejected Mr Fitzgerald's submission that there was no case to answer in respect of the incitement to murder offence. The basis of this submission was that it was all too vague. There was no sufficient certainty or specificity —to use Mr Fitzgerald's words —about the intended target, or indeed about the circumstances in which the killing would take place and whether it would be lawful or not. In our view, the evidence was plainly sufficient for the judge to leave the case to the jury to decide. The question of precisely what the words actually used by the appellant amounted to was for them.
As to ground, 8, it was argued that there was no case to answer in the context of the undoubted possession by the appellant of what is described as the Afghan Encyclopaedia of Jihad. The argument is that as the police had returned the encyclopedia to the appellant in 1999, that of itself afforded him a reasonable excuse for its possession, one which, as a matter of law, required a direction to the jury. We agree that the issue had to be left to the jury. The judge left the defence to the jury with the appellant's explanations for his possession, the circumstances in which he recovered possession and the arguments by Mr Fitzgerald on his behalf in relation to reasonable excuse for its possession. In our judgment, that was precisely the way in which the issue should have been left to the jury.
Ground 9 depends on a submission that the judge failed to have sufficiently in mind the amendment to the Public Order Act 1986, which, with effect from December 2001, in the course of the Anti-Terrorism Crime and Security Act 2001, by means of section 37 repealed the words "in Great Britain" and removed them from section 17 of the 1986 Act. Mr Fitzgerald's complaint in essence is that the judge did not direct the jury in express terms whom the racial hatred in question should apply. Given the way in which the judge in fact directed the jury, we can see no fault or problem. He made clear in his summing-up that they should consider the issue in relation to Jews generally. That, in the context of this case, was a sufficient expression of the issues.
Ground 10 raised issues the judge's directions about the circumstances in which killing, following the breakdown of the ordinary principles of law and order, whether by way of civil war, or armed conflict, should be approached. The way in which Mr Fitzgerald put his submission was that this was the kind of case to be equated with a defence of killing on the battle field. If that was what the appellant was exhorting, then it was not unlawful killing. Therefore he was not soliciting to murder, and therefore the offence did not arise. We have read four pages of the judge's direction to the jury on this issue and it was impeccable. The judge distinguished between lawful killing, that is to say killing in self-defence or in defence of another person, and contrasted it with retaliation or counterattack. He then developed the concept in the course of his summing-up, and extended it, as far as reasonable, in the context in which Mr Fitzgerald was seeking to argue that his client's exhortations were not unlawful. He dealt with it by referring to "armed fighters", as he put it, trying to choose a neutral term: rebels; insurgents; participants in some kind of civil war. He went on:
"…it is not the law that armed people participating in that kind of conflict cannot commit murder. An aggressive killing, other than in self-defence, in the course of such conflict is murder. There is no exception for such a situation."
That in law was an accurate direction. He went on however:
"If people join, as it were, a frontline where you have opposing armed forces facing each other then you may think they may kill aggressively; in other words, not in self-defence, or in self-defence of themselves or their colleagues, and it is jolly difficult to tell in advance which it is going to be. So if you come to the conclusion that the only sense in which the defendant was encouraging killing was that he was encouraging people to go and join a frontline of that kind, facing another armed body, you may think that you really cannot be sure that what he was encouraging would necessarily extend...
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