R v Ahmed (Rangzieb)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 25 February 2011 |
| Neutral Citation | [2011] EWCA Crim 184 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 200900336 B5 200900496 B5 |
| Date | 25 February 2011 |
[2011] EWCA Crim 184
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
Mr Justice Saunders
Before : Lord Justice Hughes Vice President of the Court of Appeal
Criminal Division
Mr Justice Owen and
Mrs Justice Thirlwall DBE
Case No: 200900336 B5 200900496 B5
T20087479 T20080581
Mr J Bennathan QC and Mr T Moloney QC (instructed by Irvine Tanvi Natas) for the Appellant Rangzieb Ahmed
Mr J Wood QC and Mr R Littler (instructed by Tuckers) for the Appellant Habib Ahmed
Mr A Edis QC and Ms B Cheema (instructed by Crown Prosecution Service) for the Crown
Hearing dates : 30th November, 1st,2nd,3rd, December 2010
This is a judgment to which we have all contributed.
These two appellants, who share a name but are not related, were convicted of terrorist offences. The gist of the case against them was that they were active members of Al Qaeda. It was that they were heavily involved in general terrorist planning and the co-ordination of agents or sympathisers in the UK, rather than that a particular act of terrorism in train could be identified. It was part of the case against them that they were in possession of lists and contact details for other members.
Rangzieb Ahmed's defence at trial was that he was indeed a terrorist, but not for Al Qaeda. His terrorist interest, it was said, was as a member of an extreme Kashmiri organisation, known as Harakat-ul-Mujahideen ("HuM"). If that possibility were not excluded to the satisfaction of the jury, on the criminal standard of proof, it would mean that he was not guilty of two of the three charges of which he was convicted. Although that was the case advanced on his behalf, he declined to support it by his own evidence.
Habib Ahmed's defence at trial, which he did support by giving evidence, was that although he had told people that he was a member of Al Qaeda, in fact he was not. He had been claiming that he was in order to try to induce media organisations, such as television or newspaper companies, to pay money for colourful "revelations". Unless that was excluded to the satisfaction of the jury, on the criminal standard of proof, it would mean that he was not guilty of at least one of the charges of which he was convicted.
At trial, Rangzieb Ahmed applied to the judge to stop the prosecution. He contended that it would be an abuse of the process of the court to try him, whether he was guilty or not. The reason why that was said was because some time after the offences charged were alleged to have been committed he had been arrested in Pakistan and held in custody for just over a year. During that time, it was his case that he had been tortured by the Pakistani authorities (and/or on the authority, he asserted, of the USA). Founding upon that allegation, it is said on his behalf that the UK authorities had sufficient connection with that detention to amount to "complicity" in torture and that if so, no prosecution of him could properly be allowed to continue without affronting the fundamental principle of international law which outlaws torture.
The judge heard evidence about what had happened and did not believe important parts of what Rangzieb said. But in any event, he held, putting it in the briefest terms, that the test of whether a prosecution should or should not be stayed was whether any torture or ill treatment, if there had been any, impacted upon the trial. If it did, then that would provide a reason for staying the trial. If it did not, then whatever may be the legitimate debate about the rights and wrongs of what had or had not been done, it had nothing to do with the trial and provided no reason for not deciding according to the ordinary rules of evidence whether Rangzieb was guilty of the terrorism charged, or was not. The judge held that whatever may have happened in Pakistan, it formed no part of the evidence at the trial and had had no impact upon it. Accordingly, there existed no reason for his not being tried according to English law in order to discover whether or not he was proved to have committed any offence against our law. The principal question in this appeal is whether the judge applied the right test in refusing to stay the prosecution as an abuse of process of the court.
Each defendant also advances other grounds of appeal. Both defendants contend:
i. that the learned judge erred in admitting the evidence of Professor Clarke as expert evidence,
ii that in summing up the learned judge
a. failed to give any or any adequate direction as to the meaning of 'belong to' in section 11(1) of the Terrorism Act (counts 3 and 4) – "the Membership Issue", and
b. failed to direct the jury as to the territorial nature of the offence under section 11(1) – "the Territoriality Issue".
Habib advances the further ground that the learned judge misdirected the jury as to the use that they could make, when considering the case against him, of their conclusions concerning Rangzieb – "the Cross-Admissibility issue".
Outline history
Both defendants are British citizens born in Lancashire. Rangzieb spent much of his youth in Pakistan, having been taken there by his father. As an adult he was, from 1994 to 2001, a prisoner of the Indian authorities after arrest in Kashmir. He appears to have spent substantial parts of 2003–2004 in Pakistan, but at other times was in the UK, where his mother and siblings live. Habib is three years younger. He and his wife, living in Lancashire, were adherents of an extreme Islamist organisation based in the UK, called 'Al-Muhajiroun'. He made a number of trips to Pakistan. In March 2002, using the false name 'Abdullah' and photographed with a identity-disguising mask, he gave an interview to The Sunday Times asserting that he was an Al-Qaeda fighter just back from Afghanistan and giving details of what he had done.
It is known that on 26 May 2005 the two defendants flew out together on the same flight to Pakistan. They had, however, made their bookings separately, Habib in Manchester and Rangzieb in London. Habib returned in July. Rangzieb's movements thereafter are unclear. However, six months later in December 2005 they met, clearly by arrangement, in Dubai. Habib flew there from Manchester. Rangzieb arrived on a flight from China, in the company as far as Sharjah of one Mohammed Zillar Rahman ("MZR"), also alleged to be a terrorist. The two defendants shared a hotel room in Dubai from 11 th to 15 th December. MZR appears to have flown on to South Africa; at all events a coded telephone call from that country was received, Rangzieb was initially contemplating going there himself, and within a few days MZR flew into London from Johannesburg. Whilst the two defendants were in the hotel in Dubai some of their conversations were secretly recorded by a listening device and the content was later made available by the Dubai authorities to the Manchester police.
The product of the Dubai listening device was a large part of the Crown case against both men. On the face of it, it was such as entitled the jury to conclude that they were both members of Al-Qaeda, Rangzieb senior to Habib. Habib had brought a telephone SIM card and some outdoor clothing for Rangzieb, apparently to his order. Rangzieb showed his expectations of further help from Habib, in relation to finding accommodation in the UK if he should return there, to providing a ticket back to Pakistan and to managing the media in the interests of Al Qaeda. Importantly, he also asked Habib to take back to the UK with him some diaries. The conversation makes it clear that the information in the diaries was written in invisible ink, and Habib was warned not to allow his little daughter to scribble on the apparently blank pages. Initially Rangzieb was not contemplating an immediate return to the UK, but rather a possible flight to South Africa, depending on contact from someone already there, who appears to have been MZR. However, over the course of the few days the two defendants were in Dubai, their plans changed, perhaps because MZR had not stayed in South Africa, and Rangzieb determined to return to the UK, albeit separately from Habib, and still with Habib carrying the diaries. The recorded conversations of the defendants included discussion of how hard each had worked for the cause, whether Habib might in future move to service abroad, and how far marriage and family were compatible with doing so. They also spoke of training camps, a summons from "the big ones", fundraising, martial arts techniques, anti-surveillance procedures, the route which Rangzieb could best take in order to avoid arrest on his return, and of Habib's role to 'step up the pressure on the media' if that unfortunate event should occur.
Habib returned first to the UK. As he passed through Schipol airport in Amsterdam his luggage was searched and the diaries he was carrying were photographed but left with him. There were then three books. Two were seized eight months later when Habib was arrested, but the third had vanished. The contents of the diaries, both those recovered and that lost but photographed, formed another principal plank of the Crown case. In invisible ink were found contact numbers for persons with terrorist connections, and Email addresses and access passwords suitable for use for covert messaging via a 'dead letter drop' method which avoided interceptable transmission to an identifiable recipient. A page from one book ("GS/167") contained some of the contact numbers, copied by Habib at...
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