R v Berry

JurisdictionEngland & Wales
JudgeLORD JUSTICE DUNN,LORD JUSTICE WATKINS
Judgment Date31 January 1986
Neutral Citation[1984] EWCA Crim J0326-1
Judgment citation (vLex)[1986] EWCA Crim J0131-2
Docket NumberNo. 3379/B2/83,No. 2619/C/85
CourtCourt of Appeal (Criminal Division)
Date31 January 1986

[1984] EWCA Crim J0326-1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:

Lord Justice Dunn

Mr. Justice Stocker

and

Mr. Justice Jupp

No. 3379/B2/83

Regina
and
John Rodney Francis Berry

MR. R.D. AMLOT and MR. N. SWEENY appeared on behalf of the Appellant.

MR. D. COCKS Q.C., and MR. H. GREEN appeared on behalf of the Crown.

LORD JUSTICE DUNN
1

On the 24th May 1983 in the Crown Court at Chelmsford before His Honour Judge Greenwood the appellant was convicted (by a majority of ten to one) of making explosives and on the following day was sentenced to eight years' imprisonment. He now appeals against conviction and sentence by leave of the single judge who granted him bail.

2

The background to the case is that the appellant and his co-accused, Jeffrey Smith, were charged in an indictment containing two counts. The jury were discharged from returning a verdict on Count 2 which was a count of being knowingly concerned in the evasion of the prohibition on exportation of military appliances contrary to section 68(2) of the Customs and Excise Management Act 1979. That count had been added after committal for trial by way of a voluntary bill some weeks before the trial started. The jury were unable to reach a verdict in respect of Smith and at his subsequent trial a verdict of not guilty was returned by direction of the trial judge, Mr. Justice McCullough.

3

The prosecution alleged that between January and December 19 81 the appellant made a quantity of electronic timers designed for use by terrorists in the construction of time-bombs. The appellant was in the business of exporting various electrical appliances and had contacts in the Lebanon and Syria. The timers were produced by a company owned and managed by Smith under a contract between him and the appellant dated 15th January 19 81 which contained a specification of the timers.

4

In October 1981 the appellant approached a Mr. Aspin, a licensed arms dealer, who said that they discussed the sale of detonating and transmitting equipment for export. Mr. Aspin said that the appellant produced one of the timers to him. The timer gave him cause for concern and after taking legal advice he handed it to the police. The timer was sent to Woolwich where it was examined by Mr. Feraday a scientific officer with a long experience of terrorist devices. He examined the timer with care and expressed the view that he had considered many possible military and civilian uses for the device but had come to the conclusion that it had been designed for use in a terrorist operation, namely, attachment to an explosive device. He said in evidence that he could find no military or civilian use for the timer. He said he had seen similar timers and devices used by terrorists in several countries, including Northern Ireland.

5

The appellant was first seen by the police on the 20th October 1981 and he told them that the timer had numerous applications, for example for runway lighting and garage doors. He was interviewed again on 16th November 19 81 and he made a statement. In the statement he said that the timers were first discussed in Beirut while he was there transacting other business with government officials. As a result he supplied 1,000 of the devices and he added that on a subsequent visit he saw the timers in the government's possession.

6

On the 11th December 1981 the appellant was again interviewed and expanded on his statement. He said that in early January 1981 he and Smith were in Beirut and were introduced to some businessmen who were interested in buying equipment. A timer was discussed and an order placed but it was never discussed what they would be used for. He was asked whether there was ever any mention of the timers being used for aircraft landing lights and he replied "No". Mr. Feraday said in evidence that the timers were not suitable for that use.

7

The appellant gave evidence at his trial. He said that in 1976 he had formed a company to import electrical goods and began to trade in security devices. He formed several contacts in the Middle East, his main one being Mr. Monzer. He said that in September 1980 he went to Damascas and discussed various matters at a government building in Mr. Monzer's presence. In December of that year he went to Beirut with Smith to discuss certain difficulties experienced in the operation of some hovercraft. They went to Damascas and during the course of discussions, at which Mr. Monzer was present, a timer was produced, although no mention was made of its purpose. It was agreed that Smith would manufacture the timers and that the appellant would sell them to Mr. Monzer.

8

The appellant described how the timers were eventually delivered and said that on the 29th March 1981 while in Beirut again he understood from Mr. Monzer that most of the timers had been returned to him because they were defective. He said that he had never knowingly dealt with terrorists and that so far as he was aware the timers were not made for any terrorist purpose. He added that he had brought 12 of the devices back to England and subsequently showed some to Mr. Aspin, although he was not aware that the timers had been handed to the police.

9

Mr. Monzer gave evidence. He said that the timers were delivered to the Syrian Government but were returned to him because they were not satisfactory. He said he did not inquire what they were being used for but that he thought there had been mention of landing lights.

10

A scientific consultant, Dr. Hanka, who exmained the timers was also called as a witness for the defence. He said the timers were of poor quality and inaccurate and that there was nothing in their design which led him to the conclusion that they had been produced to detonate explosives. He was of the opinion that they could be used to operate airstrip landing lights although it would be a very cumbersome system. But in cross-examination he said that he did not disagree with anything that Mr. Feraday had said.

11

Count 1 of the indictment was a count charging making explosives contrary to section 4 of the Explosive Substances Act 1883. The particulars of the offence were that Berry and Smith "On a day between the 1st January and the 11th December 1981 made an explosive substance, namely a quantity of electronic timers, in such circumstances as to give rise to a reasonable suspicion that they had not made them for a lawful object."

12

The defence made a request for particulars of the circumstances giving rise to the suspicion that the timers were not made for a lawful object. That request was refused and at the outset of the trial Mr. Amlot for the present appellant made an application for those particulars. In the course of the discussion Mr. Cocks for the Crown said the Crown's submission "is that once the manufacture takes place at all, it matters not where the unlawful object is to be carried out, later, like manufacturing a bomb which in due course is to explode in the Lebanon, and exporting it to the Lebanon, that is sufficient."

13

The judge refused the application for particulars of the count and in the course of his ruling said: "What the Crown say, from reading the papers and from what Mr. Cocks said, is that these things were going to the Lebanon, maybe some were and some were not, we simply do not know, but what we are saying is that there is evidence to satisfy a jury here that these electronic timers were gcing to be used for terrorism, terrorist purposes, and they were manufactured in this country, and we cannot with certainty say where they were going to be used, and therefore it would not be right to give further and better particulars and to state whether they were for the Lebanon, where the only evidence for the prosecution is coming from the defendants, and one cannot be certain, with no documentary evidence on the papers to support such a suggestion."

14

So the case proceeded on that basis. The case was opened by Mr. Cocks, the evidence for the Crown was called and at the conclusion of the Crown's case the application for particulars was renewed and coupled with a submission that if the unlawful object was one that was to be fulfilled abroad then on the true construction of section 4 the court had no jurisdiction, because the object is confined to an unlawful object in this country. After considerable argument, the judge rejected that submission.

15

Mr. Cocks put the case for the Crown in this way. He said once the Crown prove that there are suspicious circumstances of manufacture, as they have in this case in the form of Mr. Feraday, so that the reasonable suspicion arises from those circumstances, "Then I submit the offence is complete and it matters not whether the object was the commission of activity abroad or here." At that point the learned judge stopped Mr. Cocks and gave his reasons in a short judgment in which he said: "The offence, in my respectful view, is the manufacturing of the article, as I shall call it - the explosive substance - under certain circumstances. Once the Crown have proved that the defendant manufactured an article which turns out to be an explosive substance (which is a matter for the jury) under certain circumstances, those being to give rise to a reasonable suspicion that he is not making it for a lawful object, then, subject to his having the statutory defence, the actual object of where that device is going to be used, be it in this country or abroad, I shall tell the jury, is immaterial. It can be used in either."

16

The judge did indeed leave the question to the jury in that way in his directions as to the law. He put it in these words: "So what have the prosecution to prove in a nutshell? This is the way the Crown have put their case in this...

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