R v Omar Khyam and Others
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division,the President of the Queen's Bench Division |
| Judgment Date | 23 July 2008 |
| Neutral Citation | [2008] EWCA Crim 1612 |
| Docket Number | Case No: 2007/02682 C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 July 2008 |
[2008] EWCA Crim 1612
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
Sir Michael Astill
Royal Courts of Justice
Strand, London, WC2A 2LL
The President Of The Queen's Bench Division
Mr Justice Bean and
Mrs Justice Dobbs
Case No: 2007/02682 C5
Mr J Bennathan QC and Mr M Huseyin for Khyam
Mr P O'Connor QC and Mr H. Mullen for Amin
Mr J. Wood QC and R Harvey for Akbar
Mr M. Ryder and Mr H. Zahir for Garcia
Mr M Massih QC and Mr R.M.T Price for Mahmood
Mr D.E. Waters QC, Mr M Heywood and Mr D Atkinson for the Prosecution
Hearing dates: 10 th June – 17 th June 2008
These are applications by Omar Khyam, Salahuddin Amin, Jawed Akbar, Anthony Garcia and Waheed Mahmood for leave to appeal against their convictions on 30 th April 2007, after a trial lasting 14 months at the Central Criminal Court before Sir Michael Astill sitting as a deputy judge of the High Court and a jury, for conspiracy to cause explosions likely to endanger life or cause serious injury to property, contrary to section 3(1) (a) of the Explosive Substances Act 1883. Khyam and Garcia were also convicted of possessing fertiliser containing ammonium nitrate for the purposes of terrorism and Khyam was further convicted of possessing aluminium powder for the same purposes, contrary to section 57(1) of the Terrorism Act 2000. They also apply for leave to appeal against these convictions. However they do not raise any separate or distinct issues from the applications in relation to their conspiracy convictions.
The applicants were sentenced as follows: Khyam, life imprisonment with a recommended minimum term of 20 years for conspiracy to cause explosions likely to endanger life, and 8 years' imprisonment concurrent on the possession counts: Amin, life imprisonment with a recommended minimum term of 17 years and 6 months: Akbar life imprisonment, with a similar recommended minimum term: Garcia, life imprisonment with a recommended minimum term of 20 years for conspiracy to cause explosions likely to endanger life, and 8 years' imprisonment concurrent for possession of an article for the purposes of terrorism: Mahmood, life imprisonment with a recommended minimum term of 20 years' imprisonment. Amin, Akbar, Garcia and Mahmood apply for leave to appeal against their sentences.
All the applications were referred to the full court by the Registrar of Criminal Appeals.
Two co-accused, Nabeel Hussain and Shujah, were acquitted of conspiracy to cause explosions and possession of an article for the purposes of terrorism.
Summary of the essential facts
The jury was sworn in on 21 st March 2006. Its verdicts were returned after a retirement of 27 days on 30 th April 2007. The evidence for the prosecution took 63 effective sitting days, and the defence evidence occupied a further 44 effective sitting days. The evidence was massive. We do not propose to recite it. We shall provide the briefest possible summary, confining ourselves to the issues which arise from the numerous grounds of appeal, bearing in mind that these are applications for leave to appeal, not appeals following the grant of leave
The applicants held extremist jihadist views, which extended to the maiming and killing of non-believers, particularly from countries such as the United Kingdom (UK), the United States of America (USA) and Spain which were involved in military intervention in Muslim lands. They conspired together to cause explosions in the U K. Khyam was at the centre of the conspiracy. He involved the others, but each was only given sufficient information to fulfil his own particular function in it. It followed that some defendants were more closely involved than others, and knew more than others, but it was a feature of the intended security, in accordance with advice given to activists in the Mujahideen Handbook, that each conspirator only knew what he needed to know to fulfil his allotted role.
The conspiracy extended to a Canadian called Khawaja, who devised a remote controlled detonator described as the Hifidigimonster, and Babar, another committed jihadist, who was arrested and indicted in the USA, and subsequently gave accomplice evidence against the conspirators. Of the current applicants, Amin, who enjoyed joint British and Pakistani nationality, lived in Pakistan from November 2001. This conspiracy therefore extended over three continents. Its objective was to further the conspirators' perverted view of the cause of Islam by using violence wherever possible, but in particular in the UK, with proposed terrorist attacks on the London Underground, nightclubs, public houses and synagogues. An email from Khawaja to Khyam expressed the hope for “fireworks” in December 2003. By then some of the conspirators, including Khyam, had attended a training camp in Pakistan where they were given training in the use of explosives. On Khyam's return to this country he arranged to obtain ingredients for an ammonium nitrate fertiliser-based explosive device. He brought aluminium powder back from Pakistan, and later, just over half a ton of ammonium nitrate was found at storage premises rented by him. For reasons which are irrelevant for present purposes, the implementation of the project was delayed.
In early 2004 Khyam contacted Amin in Pakistan to obtain the appropriate formula for creating the explosive device. This was provided. Fortunately, the conspirators were under surveillance. [ redaction] On the following day all the present applicants save Amin were arrested in the UK. On or about 3 rd April Amin surrendered to the authorities in Pakistan. Babar, who left Pakistan and went to the USA in early March 2004, was detained by FBI agents in the USA on 6 th April.
On 8 th February 2005 Amin arrived at Heathrow airport where he was arrested. His subsequent admissions in interview confirmed his deep involvement in the conspiracy. Following his damaging, indeed devastating admissions, made in the presence of his solicitor, Amin was charged. On 15 th March he sought and was granted permission to change his solicitors. In the meantime Babar, too, admitted his involvement to the authorities in the USA. On 24 th May Babar entered into a plea agreement. On 3 rd June he pleaded guilty in the USA to an indictment which included participation in this conspiracy. He agreed to give evidence in London at the applicants' trial. On 11 th August a summary of his potential evidence was forwarded by FBI to the appropriate security agency here. A lengthy witness statement was made by him in New York for use in the present proceedings. He signed it on 14 th March 2006.
The arrival of Amin in this country, and the steps taken to join him in the trial of the conspirators, and Babar's production in this country as a witness at trial produced a number of pre-trial hearings. In due course, when objections to their respective involvements in the trial were rejected, they participated in full, Amin as a defendant, and Babar as an important prosecution witness. Indeed the grounds of appeal which occupied the largest proportion of the hearing before us related to the circumstances of Amin's arrest and eventual production in the UK, complaints about the disclosure process, as it applied in this case, and unsuccessful applications to the trial judge to recuse himself.
It is perhaps worth emphasising at the outset that the Crown did not adduce before the jury any evidence whatever produced during the course of Amin's interviews in Pakistan, [ redaction]. The prosecution relied exclusively on virtually 600 pages of notes made in the course of Amin's interviews in this country, in the presence of his solicitor, when Amin himself accepted that he had been properly treated. Indeed his own evidence was that although he was tortured and ill-treated, and accordingly made admissions, when he was in the exclusive custody of the authorities in Pakistan, when he was interviewed in that country by UK security officials no impropriety was alleged. [redaction] Perhaps one further distinction between the interviews in Pakistan and those which took place here should be highlighted: during the period when Amin was detained in Pakistan, the interest of [redaction] was exclusively focussed on public safety, whereas when Amin was arrested and interviewed on his return to this country, they were addressing the possibility that Amin would be charged and tried for his involvement in this conspiracy.
In preparation for these applications, a preliminary hearing before the Court as presently constituted took place on 28 April 2008. This was followed on 16 th May by a meeting in chambers and discussion before the President of the Queen's Bench Division sitting on his own, attended by counsel for the Crown as well as counsel on behalf of each applicant. A number of different issues required decision before the start of the hearing of the applications themselves. Some were dealt with on 28 April and others were postponed for decision on the basis of written submissions when the court as presently constituted could meet.
Recusal of the President of the Queen's Bench Division (PQBD)
The submission advanced at first by Amin, and subsequently adopted by a number of other applicants was that the PQBD should recuse himself and that the court should be reconstituted.
The foundation for the application arises from some observations made by the trial judge. They were made after a longstanding fixed trial date of 5 th September...
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