R v Billy Nathan Midmore
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ |
| Judgment Date | 28 April 2017 |
| Neutral Citation | [2017] EWCA Crim 533,[2017] EWCA Crim 2 |
| Docket Number | Case No: 2015/05635/C1,Case No: 2016/03334/B3,2015/05635/C1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 April 2017 |
[2017] EWCA Crim 2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
His Honour Judge Katz QC
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Mr Justice Wilkie
and
Mr Justice Fraser
Case No: 2015/05635/C1
Mr Mark McDonald for the Applicant
Mr Mark Weekes for the Respondent
Hearing date: 1 November 2016
On 13 November 2015, the applicant was convicted at the Crown Court at Woolwich before HHJ Katz QC and a jury of two offences under s.5 of the Terrorism Act 2006, having earlier pleaded guilty to a count of fraud. He was sentenced to a total of five years' imprisonment. His application for leave to appeal against sentence was considered by this court, along with other cases and is reported under the name R v Kahar, reported at [2016] EWCA Crim 568. That application was refused as being without merit; the court concluded that the sentence was generously merciful to the applicant (see paragraphs 110–128 of the judgment).
His appeal against conviction has been referred by the Registrar to the Full Court. The grounds related to his capacity to understand questions at the police interview and, for similar reasons, not only questions at trial, but also the way the trial proceeded. The trial judge had permitted him to have an intermediary during his evidence, but he contended he needed an intermediary not only when he gave evidence, but also during the whole of the trial. It is therefore necessary to set out a summary of his educational attainment.
The factual background
His educational attainment: GCSEs and Middlesex University
The applicant is a British national, born 29 March 1996. He was 18 years old at the time of the offence.
He attended Alperton Comprehensive School from 2008 to 2012. When at that school, he passed 5 GCSEs (English Grade C, Mathematics Grade E, Geography Grade F, Religious Studies Grade D, Design and Technology G) He also obtained a BTech level 2 extended certificate in applied science. There was evidence in the school reports of the applicant's untruthfulness and lack of interest in learning. The Head Teacher of the school who was only vaguely familiar with the applicant gave evidence in relation to the school records which noted that on entry to the school he had needed support; he had not however required outside support.
He then went to Ealing College in 2012–2013 where he passed 6 GCSEs (Mathematics Grade C, Business Studies E, Physics Grade D, Chemistry Grade E, Biology Grade D and English Grade D)
He then went to Uxbridge College between 2013 and 2014 where he achieved the grade of unclassified at AS level Biology, Physics and Sociology.
He applied to Middlesex University to study electronic engineering with a certificate fraudulently altered to show the applicant's name. He was admitted on the basis of that false certificate.
The applicant became a student at Middlesex University in October 2014 and took out a student loan for £6,000. The senior lecturer in design engineering had provided two statements, one taken by the prosecution and one by the defence. He was not called. He had taught the applicant one class a week. The applicant had been quiet and was a weak and very poor student. The senior lecturer's assessment of the course work submitted by the applicant was that it would be "a pass" or of "a very poor standard". The applicant had understood some of what he had been taught, but not other parts. He had missed 4 of the 12 classes. There was nothing that suggested that the applicant needed additional academic support. He had got a low pass in mathematics. He was one of the weakest two or three students in the class of 17.
The facts relating to the allegations of terrorism
In or around November 2014 the applicant met Ibrahim Amouri, whom he knew from school, at the Wembley Mosque. Ibrahim introduced him to Khalid Abdul-Rahman and Swaleh Mohamed; the four were socialising regularly towards the end of 2014.
Various social media accounts in the applicant's name were used to view videos that glorified the violent activity of the terrorist organisation, the so called Islamic State (IS), and to post favourable comments beneath them. He maintained that his friends used his laptop, and that he was unaware of their activity.
On 25 February 2015 the applicant used the funds provided by his student loan to buy plane tickets to Morocco for his three friends and for Deqo Osman, who was married to Swaleh. On 26 February 2015 the applicant and his four companions flew to Morocco together.
While in Morocco the applicant changed his name on Facebook to Muhammad Al-Hazwani, and made a post stating that he wanted to give up his "life of comfort to a life of severe trials so that I may achieve a share of the hereafter seriously."
On 28 February 2015 the applicant talked with his father via Facebook, and falsely told him that he had gone on holiday in Morocco. On 3 March 2015 the group flew to Istanbul, and subsequently travelled by coach to Gazientep on the border between Turkey and Syria. Once there the applicant and his friends stayed at a safe house.
The applicant maintained that he was assured that they were travelling to an Islamic State, that is, a republic where they could follow Sharia law and avoid temptation and a bad life – his friends had been involved in drugs before they became religious. He claimed that he did not really know what IS actually was, and did not believe they were travelling to fight. When he watched the news and conveyed his doubts that Syria was safe, his friends told him that the news was made up.
On the applicant's account, while at the safe house in Gazientep his friends began behaving differently to how they had behaved before, and he started to disbelieve them. He also heard conversations from others indicating that Syria was not safe, and that people were going there to fight. His account was that he decided to return to the UK.
He therefore returned to Istanbul and on his father's advice attended the British embassy, where he was arrested by the Turkish police. He was put on a flight home on 31 March 2015, and was arrested by British police at Luton airport when he arrived at 11:00.
The police interviews
The applicant was then taken to and questioned at Paddington Green police station. The custody officer, Sergeant Elliott, opened a custody record and told him of his rights and entitlements, including the right to have somebody told of his arrest at that time, and the right to legal advice, both of which he declined. Sergeant Elliott acknowledged that while she read to him the leaflet entitled "Detained person's rights", she ought to have given him a copy to read as required by Code C, but failed to do so.
Sergeant Elliott did not consider the applicant to be mentally vulnerable within the relevant PACE Code of Practice and judged that no appropriate adult was required for the interview that followed. In her evidence, she stated
"I was able to engage with him. I was able to talk to the young man. He was not withdrawn. He was cooperating with me and answering my questions."
The applicant was subsequently given a medical examination by the police force Medical Examiner, Dr Lane, to determine his fitness for interview. Dr Lane found him to be open, talkative and communicative. Despite the natural tiredness of having just completed a flight, he deemed the applicant fit for interview, and decided that no appropriate adult was required.
In his first interview, which began at 15:49 and lasted just under two hours, the applicant made a number of statements that harmed the case he subsequently sought to present at trial, including describing IS as an "army" and saying he was going to join it. The prosecution contended that this amounted to a confession that he was going to Syria to fight for IS.
Following this interview the applicant changed his mind about wanting legal advice. A solicitor was called and arrived at 21:04. The applicant was then in conference with the solicitor from 21:59 to 23:19. The solicitor did not suggest any need for an appropriate adult. The interview was postponed until the following day.
In his subsequent interview on the following day, 1 April 2015, a solicitor was present. The applicant gave each question the answer, "no comment".
The preparatory hearing and the trial
It was the prosecution case that the applicant had become radicalised by his friends and it was their intention to travel to Syria and fight for IS. The acts alleged under s.5 were booking and paying for the flights for himself and his four friends. It was the applicant's case that he had acted under the influence of his friends and was unaware of the nature of IS or what they were doing in Syria. He maintained that his intention had simply been to go to Syria and live peacefully.
The ruling by the judge on the interview and the provision of an intermediary
The trial was fixed to begin on 5 October 2015. The applicant made two applications:
i) He sought to have his confession at his first interview ruled inadmissible as unreliable, arguing that he was mentally vulnerable as his cognitive functioning was substantially impaired and required an appropriate adult to be present.
ii) He sought to have an intermediary for the entirety of the trial.
The judge determined these applications at the preparatory hearing required for terrorism offences by s.29(1B)...
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