R v Mullen (Nicholas Robert Neil)

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeTHE VICE PRESIDENT
Judgment Date04 February 1999
Judgment citation (vLex)[1999] EWCA Crim J0204-26
Docket NumberNo: 9704978/Z3
Date04 February 1999

[1999] EWCA Crim J0204-26

IN THE COURT OF APPEAL CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Before:

The Vice President

(Lord Justice Rose)

Mr Justice Colman

and

Mr Justice Maurice Kay

No: 9704978/Z3

Regina
and
Nicholas Robert Neil Mullen

MR C MACKAY QC and MISS C LLOYD-JACOB appeared on behalf of the Appellant

MR N SWEENEY appeared on behalf of the Crown

1

Thursday 4th February 1999

THE VICE PRESIDENT
2

On 8th June 1990, at the Central Criminal Court, the appellant was convicted following a trial before Mr Justice Hidden of conspiracy to cause explosions, likely to endanger life or cause serious injury to property. He was sentenced to 30 years' imprisonment.

3

Initially he applied for leave to appeal only against sentence and, following refusal by the Single Judge, the Full Court refused leave in March 1991. Seven years after the trial, a differently constituted division of the Full Court granted his application for an extension of time and leave to appeal against conviction following refusal by the Single Judge. The grounds argued before this Court, in support of his appeal, relate solely to the circumstances of his deportation from Zimbabwe to England prior to his trial. No challenge is sought to be made to the conduct of the trial itself and the appeal has proceeded on the basis that, if it was fair to try him, the appellant was properly convicted.

4

It is unnecessary to refer to the facts of the case save in the briefest outline. Following a shooting incident in Battersea, in the early hours of 21st December 1988, the police searched a flat at 8, Staplehurst Court, Battersea. They found over 100lbs of Semtex, timing and power units for detonating various types of bomb, a number of ready made car bombs, blasting incendiary devices, mortar bomb equipment, firearms and ammunition. The prosecution alleged that the appellant was responsible for renting those and several other premises used by the bomb makers and for supplying them with false birth certificates and driving licences. He also obtained a number of cars for them and arranged banking facilities at two building societies. He wrote an inventory of bomb making equipment which was found at Staplehurst Court. Traces of Semtex were found in two of the cars which he had bought.

5

The defence was that the appellant had arranged the premises, banking facilities and false documentation for two men whom he believed would use them in a credit card fraud. He was unaware of IRA involvement until 14th December 1988 when, having been informed by them of that involvement, he sought to withdraw from the scheme. He claimed that they had fired a gun at him and made threats in relation to his girlfriend and child. He had written the inventory under duress at their dictation.

6

On 20th December 1988 the appellant, his girlfriend and their daughter flew to Zimbabwe. In circumstances which we shall consider in more detail later he was brought back to the United Kingdom from Zimbabwe on 7th February 1989 by a Zimbabwean immigration officer. At Gatwick Airport English police boarded the plane, arrested the appellant and took him for interview. When interviewed, in the presence of his solicitor, the appellant admitted some matters and explained others but did not say much and many of his explanations were qualified. In evidence before the jury he denied that he had ever been a member of the IRA or any other terrorist organisation and said that he had not knowingly helped the IRA. He had English and Irish passports and a lengthy criminal record. He described meeting a man called Martin in May 1988 who had been running a successful credit card fraud in Ireland. The appellant agreed to rent a house for him to facilitate a similar enterprise in England. He described renting a number of properties, opening building society accounts and acquiring cars. He gave an account, in support of his claim, that until 14th December 1988 he was not aware of IRA involvement and claimed duress, both in relation to the list of terrorist equipment which he had written and otherwise. He flew to Zimbabwe on 20th December on a ticket bought, for the 21st December, the previous month. He did not, in interview, tell the police about the events which he claimed had occurred on 14th December.

7

Before coming to the rival submissions in relation to this appeal, it is convenient to rehearse the relevant parts of material which has been disclosed to the defence for the purposes of this appeal in the form of a Summary for Disclosure, following a PII hearing before this Court. It is conceded by Mr Sweeney, on behalf of the Crown, that, in the light of the House of Lords decision in R v Mills [1998] AC 382, as the common law now stands and must therefore be taken to have been in 1990, this material ought voluntarily to have been disclosed by the prosecution, to the defence, at the time of trial.

8

The Summary for Disclosure ordered shows that on 29th December 1988 the London police contacted the Zimbabwe Central Intelligence Organisation (CIO), and on 6th January 1989 there was a meeting between the police and the secret intelligence service (SIS) in London to see if the appellant could, secretly, be summarily deported from Harare to London. On 10th January there was ample evidence to suggest that he had acted as a facilitator for an active service unit; and, on 19th January, an SIS officer was "asked to discover whether, and if exactly how, Mullen could be returned from Zimbabwe into police custody and to discover whether he could be expelled direct to the UK….and what steps were needed to expel him"; the aim was "foolproof return of Mullen to London". On 20th January the CIO indicated they "did not want to get involved in extradition which was likely to get bogged down. However the SIS officer was informed that it should be possible to obtain approval for Mullen's deportation direct to the UK but it was not certain at present that the evidence was sufficient". On 20th January the SIS in London indicated that every SIS step would require the utmost care "with a constant eye on any subsequent legal proceedings in London". The CIO were provided by an SIS officer with a draft paper recommending deportation for illegally using false identities in Zimbabwe, misrepresenting his occupation, illegally trafficking in precious stones and using Zimbabwe as a safe haven for activities in support of international terrorism. The appellant was described as a violent man, with a knowledge of firearms and explosives. At a meeting in London, the police indicated that "it could be detrimental to any future legal proceedings in England if it appeared that his return was by means other than official channels". Any move by the Zimbawean authorities to exclude Mullen must be based solely on his activities in Zimbabwe. Any action taken must at all costs be capable of withstanding close judicial scrutiny in England. On 23rd January, a second draft, adding a fifth ground for deportation, namely that Mullen was conducting business in Zimbabwe, contrary to the conditions attached to his temporary employment permit, was prepared by the SIS and delivered to the CIO. By the same date it had been agreed that extradition would be likely to fail for political reasons. The Zimbabwean authorities' "normal procedure in a deportation case was for the person to be deported to the country that he had originally departed from and such cases were normally acted upon before the subject had time to secure the services of a lawyer. If the process after Mullen's arrest became protracted for any reason and he obtained a lawyer there would be a risk that Zimbabwean authorities would be pressured into deporting him elsewhere". On the same day, the SIS in London indicated that "we do not want to appear to be the demanders" at a meeting the following day which was to take place between the Deputy Director General of the CIO (the DDG) and a SIS officer.

9

At that meeting, on 24th January, after indicating that the pursuit of the IRA and its active supporters was a matter of the highest priority for the UK government, the SIS officer told the DDG that, if at all possible, they wished to avoid "becoming involved in complicated extradition proceedings". The DDG indicated his agreement that the United Kingdom should be going for deportation. On 27th January, at a meeting in London between the SIS and the police, it was agreed that the best way forward was for any deportation to be based upon Mullen's declaration that he had had no previous convictions when applying for a permanent residence. It was believed that this alone would be "adequate for Mullen to be seized in Zimbabwe (with timing stage-managed shortly before a direct flight to London) and deported to the UK in short order". On 30th January the SIS agreed that Mullen's criminal

10

record "ought to clinch the case for deporting him".

11

On 1st February, at a meeting in London attended by officials from the police, the SIS, the security service, the Foreign & Commonwealth Office and the Home Office, eight matters were minuted: the police were not in a position to apply for extradition; Mullen's own activities had brought him to the note of the Zimbabwe authorities; the Zimbabwe authorities had asked the British police for details of his criminal record as a result of his residency application; the implication of his Irish citizenship needed to be considered carefully; the government had to be ready to respond with indisputable evidence that any deportation had been entirely at the instigation of Zimbabwe for breach of local laws; if Zimbabwe decided to deport there would be considerable advantage in not telling Mullen...

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