Khan v R

This is an appeal against a conviction for contempt of court. Fulford J dealt with this appellant summarily, on 17 March 2006 at the Crown Court at Snaresbrook and sentenced him to 12 months’ imprisonment consecutive to a sentence he had just imposed for 8 years’ imprisonment. That sentence followed his plea of guilty on the first count of a two-count indictment. The offence to which he pleaded guilty was of conspiracy to enter into or become involved in an arrangement as a result of which money or other property would be made available for the purposes of terrorism.

This appeal raises the issue as to the extent to which the appellant could rely upon legal professional privilege in refusing to answer questions during the course of evidence he gave on behalf of a co-defendant. The prosecution had sought to cross-examine the appellant on matters which, it asserted, were within the scope of the plea of guilty. Despite warnings by the judge that the questions did relate to matters which he had already admitted, the appellant persisted in his refusal to answer them. We must resolve the issue as to whether he was entitled to do so.

It is necessary, first, to outline the circumstances in which the appellant pleaded guilty and was called to give evidence by a co-defendant. It was alleged that the appellant was an influential member of an organisation known as Lashkar-e-Tayyaba. That organisation was alleged to be affiliated to Al Qaeda and involved in terrorist activities aimed at securing an Islamic state in that part of Kashmir which is part of India. It was alleged that the organisation had been involved in training volunteers in Afghanistan. The count to which he pleaded guilty concerned the appellant’s activities on behalf of this organisation in the United Kingdom, Canada and in the United States of America between 2001 and 2004. He faced parallel proceedings in the United States where he had been indicted with one other on similar but not identical charges.

The appellant was the cousin of Frzana Khan and a close friend of Palvinder Singh. They were both named on the same count of the indictment. The appellant alleged that they were innocent dupes whom he had used so that he could arrange for materials to be delivered to their home addresses.

On 26 January 2006 the appellant pleaded guilty to the count we have identified; a further count of possessing a prohibited firearm was ordered to remain on file. He changed his plea in consideration of charges against the co-accused, Frzana Khan, being discontinued. The three counts against her were ordered to remain on the file and the trial proceeded against the other co-accused, Palvinder Singh, alone. It is important to underline the circumstances surrounding the appellant’s plea of guilty. They show, clearly, the basis of that plea. The basis was contained in what was described as a “position statement of Crown”, signed not only by prosecuting counsel but also by counsel for this appellant and counsel for his cousin. It reads:-

“In the event that Mohammed Ajmal Khan (“MAK”) pleads guilty to Count 1 on the Indictment as amended by Order of Fulford J on 26^th January 2006 on the following basis, the Crown will not proceed further on this Indictment against Frzana Khan:

1.

MAK accepts all the allegations made against him in the prosecution case as set out in the Opening Note. He takes no issue with the Crown on any issue of fact relevant to sentencing.

2.

MAK asserts that he obtained and used the name, address and credit card number of Frzana Khan for making purchases of equipment and asked her in November 2002 to send £2,500 to Masaud Khan without telling her his true reason for sending that money, but telling her that it was for him.

3.

MAK accepts that the guns acquired from Uttings and Stringtown Supplies, and the guns ordered from Uttings, but not supplied by them, were all acquired (or intended to be acquired) in order that they could be modified as the firearm recovered from 160 Broad Street on 12^th September 2003 had been modified and then supplied for terrorist use. This includes the modified firearm recovered on 12^th September 2003, which was at that time in his possession.

4.

This course of conduct by the Crown is irrelevant to the Crown’s intention to charge Frzana Khan with offences of fraud which have been detected in the course of this investigation. The Crown does intend to proceed with these allegations and it is accepted on behalf of Frzana Khan that the Crown is not prevented by this course of conduct from doing so.

5.

Nothing in this course of conduct affects the position of Singh, against whom the Crown intends to proceed.

6.

On the basis set out at paragraph 3 above, the Crown will not proceed with Count 2 on the present Indictment against MAK.

7.

It is accepted by Frzana Khan that the evidence available to the Crown constituted a prima facie case supporting the charges brought against her, and that the prosecution was properly brought. No application has been made on her behalf to dismiss the charges, nor has it ever been suggested that the prosecution of her was an abuse of the process of the Court.”

The appellant pleaded guilty on that basis although the Crown made it clear that it would not give an undertaking not to support extradition proceedings to the United States based on evidence which included that which supported Count 1.

The thrust of the appellant’s evidence on behalf of Palvinder Singh was to claim that he alone was responsible for the actions which the prosecution sought to impute both to the appellant and Palvinder Singh jointly. He said the actions which could be proved to have been carried out by Palvinder Singh had been performed as an innocent favour to the appellant and in ignorance of the appellant’s underlying purpose. During the course of his evidence-in-chief, the appellant dealt with a number of incidents in which he said he had used Palvinder Singh, unwittingly, in transactions with a terrorist purpose. Palvinder Singh had described a transaction relating to a hang-gliding course, the acquisition of a hang-glider and its transmission to Pakistan. Palvinder Singh said that, so far as he and the appellant were concerned, the transaction was for leisure and sporting purposes. He paid for lessons and the acquisition of the hang-glider and the cost of carriage at the appellant’s request. In evidence-in-chief the appellant said that he had asked Palvinder Singh to do so because he had no bank account; Palvinder Singh trusted him because he knew him to be a dealer in a number of items such as cigarettes and Viagra.

The prosecution alleged that a bank account in the name of Palvinder Singh had been used to collect funds from unknown sources and to pay for Kevlar, a material used as body armour and to protect vehicles from ballistic weapons. In evidence-in-chief, the appellant admitted that Palvinder Singh had allowed him to use that account but contended it was for innocent purposes. He used his cousin’s credit card in the same way.

The appellant said that he had used Palvinder Singh’s sister’s computer to research and send e-mails relating to Kevlar and night vision goggles. He accepted sole responsibility for creating an e-mail address at Coventry University purporting to be signed by Palvinder Singh and communicating with Barrday, a company in Canada which produced Kevlar. That e-mail address and another which contained the letters “Psingh” were used to communicate with the United States of America and confirmed the evidence of witnesses who spoke of his role in Lashkar-e-Tayyaba’s training camps.

An important aspect of the prosecution evidence against Palvinder Singh concerned his visit to Barrday’s factory in Canada. Palvinder Singh was alleged to have visited that factory and to have been shown a weapon in the ballistics room demonstrating the protective qualities of Kevlar. The appellant gave evidence that Palvinder Singh had been visiting his family in Canada and had taken the opportunity to accompany him to the factory. Palvinder Singh had only known that the appellant wanted to buy some fabric. He used the name P Singh on signing in at the factory; there had been no demonstration.

Various components intended to build a guided Drone aircraft for reconnaissance and bombing had been bought with a debit card on Palvinder Singh’s bank account. Additionally a cheque had been signed by Palvinder Singh in relation to some of these acquisitions, repaid with £150 cash into the account. In chief, the appellant said he could not recall anything about the cheque.

The appellant claimed privilege during the course of his evidence-in-chief. He was asked about an e-mail to a site which he admitted creating, from a man already convicted of terrorism offences in the United States. The judge’s approach to the claim was clear from the outset. He accepted the claim in relation to questions about the convicted terrorist provided that it was relied upon to avoid having to make further admissions of criminality.

The judge gave a similar warning and explanation in allowing a further claim to privilege when the appellant was asked questions about a flight to the United States he had taken on 11 February 2006. During the course of his evidence-in-chief the Crown made clear that it would dispute any claim to privilege:-

“…in relation to matters to which he has clearly pleaded guilty.”

The judge responded:-

“If any of the matters covered by the indictment to which he has pleaded forms the subject matter of questions that he refuses to answer questions about, you will have the clearest direction from me that that will constitute a contempt of this court.”

The basis upon which the judge warned this appellant that it was not open to him to rely upon legal professional privilege was reiterated during the course of his cross-examination. During cross-examination, the judge again drew a distinction between those matters which the appellant had already admitted by virtue of his plea of guilty and the basis of that plea contained “in the position statement of the Crown” and those matters which fell outside the scope of his plea of guilty and that position statement. During the course of his evidence-in-chief, on the first day he gave evidence (24 February 2006) the judge said:-

“If answering [that question] will expose you to…making further admissions of criminality on your part, in addition to the criminality that you have admitted in this case, so admitting offences beyond the offences that you have admitted before me, then you are entitled to remain silent in relation to those matters. Otherwise, you are under an obligation to answer the questions that are put to you.”

He repeated later on the same day:-

“The protection only applies to criminality that is in addition to the crimes that you have admitted before this court. You are not entitled to use that as a shield in relation to anything you have already admitted by way of your plea of guilty to this court. You are, I make clear, entitled to refuse to answer questions that may incriminate you in relation to additional and further crimes, do you understand that distinction? (the appellant indicated that he did)…It is not a convenient device to enable you simply not to answer questions about those things that you prefer to remain silent about.”

Notwithstanding those warnings the appellant refused to answer questions about matters which were plainly the subject matter of his plea of guilty when understood in the context of the position statement of the Crown which had been signed by his counsel, on his behalf. We shall give examples.

On the second day of his evidence, when being cross-examined, he refused to answer questions about headphones with microphones and a hand-held navigation radio ordered from Aircraft Spruce, a Californian company. His acquisition of those items was part of the prosecution’s opening note which he had specifically admitted as item 1 in the position statement.

Shortly after, at an early stage of his cross-examination, he was asked if he had a connection with terrorism. He refused to answer. He said he did not wish to admit the truth of that which was embraced in his plea of guilty. For example:-

“Q: Do you agree that you had a connection with terrorism?

A: I have pleaded guilty to the charges which you put to me.”

(This was an answer he repeated on numerous occasions.) It demonstrated a prepared response designed to give the appearance of taking responsibility without admitting the truth of his guilt. By such means he was able to avoid the truth of his exculpation of Palvinder Singh being tested by any searching cross-examination.

The appellant persisted in refusing to allow his evidence to be tested. He was asked why he had sent Kevlar to Pakistan but refused to answer because, he said, to do so would “incriminate him further”.

The following day, 28 February 2006, he refused to answer questions as to whether he knew people, including co-operating witnesses, who had been convicted of terrorism. Despite a further direction from the judge that Tuesday morning, he persisted in refusing to answer questions about others. This exchange led to an important demonstration of the attitude of this appellant. He was asked whether the basis of his plea was true. He replied:-

“I have pleaded guilty as a result of which you have dropped the proceedings against my cousin.”

When prosecuting counsel pressed him, he repeated:-

“I have pleaded guilty for the reasons I have stated before because I have been indicted in the United States.”

He was told that the protection against self-incrimination did not apply to questions designed to probe the truth of his plea of guilty but he repeated that he was going to, as he put it, “stick to my basis of plea”.

During the course of this Tuesday, he refused to answer questions about others convicted of terrorism, about a statement of evidence he had supplied to the United States on behalf of another man, about whether he had used a particular passport to travel to Pakistan in 2000 and 2001, about his knowledge of Lashkar-e-Tayyaba, and about those with whom he had conspired. Out of these many further examples of the refusal of this appellant to answer questions about those matters which formed the basis of his plea of guilty we choose two further illustrations.

He was asked questions about the use of an e-mail address for Palvinder Singh whilst he was out of the United Kingdom. He refused to answer; any answer could hardly have further incriminated him in relation to those matters to which he had pleaded guilty but might well have detracted from his evidence in support of Palvinder Singh. In similar vein, he refused to answer questions about the use of two different e-mail addresses. The prosecution suggested that that showed that two different people using those e-mail addresses were communicating with a man in the United States in relation to the acquisition of components for the Drone aircraft. He persisted in refusing to answer even though it was pointed out to him that if it was he who used two addresses rather than one it could not make matters any worse for him.

His continued refusal to answer questions about the use of two e-mail addresses in relation to the acquisition of components for the Drone aircraft contrasts strikingly with his admission that it was he alone who had used the e-mail address “johninformation”. Thus he did not hesitate to make an admission if he perceived it would assist Palvinder Singh.

At the close of his cross-examination the appellant seemed to have tired of reciting the mantra that he would not answer lest it incriminate him in relation to the indictment in the United States. He simply refused to answer questions on any subject even where to do so would tend to absolve him rather than implicate him in an overt act in the conspiracy. For example, he was asked about the signing of a cheque in the United Kingdom purporting to be signed by Mr Singh in relation to the shipping of items, said to be of assistance to the terrorist organisation, to Pakistan. It was pointed out to him that if he answered:-

“…you will actually exculpate yourself. You will actually give an alibi. You will be saying ‘I had nothing to do with signing that cheque’. It can’t have had anything to do with me because I was in Pakistan, and that cannot possibly incriminate you…

Again, I decline answering the question because of the reasons I stated before.’”

By this time, it is plain to us that the appellant was simply refusing to answer questions without even attempting to put forward a rational basis for doing so.

The judge gave his reason in writing for requiring the appellant to answer the questions he was asked and when sentencing the appellant for contempt. These reasons echoed what he had said to the appellant when warning him he was required to answer. In his reserved ruling, the judge said:-

“He has already incriminated himself as regards the issues raised by Mr Edis (for the prosecution) by his guilty plea to Count 1 (which included an acceptance of the matters set out against him by Mr Edis and the prosecution’s Opening Note), and he therefore was not entitled to rely on the protection the law affords to witnesses when it allows them to refuse to answer questions because the answers might be incriminating. All of the matters he has admitted in this court are matters which he is under an obligation to give evidence about, having been called as a witness, and having already incriminated himself on those subjects. Although Mr Balbir Singh suggested that the pending American Indictment may be wider in its terms than Count 1, Mr Edis wished to go no further when questioning Khan about matters which he had already accepted in the court…”

The judge added, in his oral remarks on sentencing:-

“Having watched you give evidence, I have no doubt that you chose to answer questions on some issues that I note in passing are undoubtedly covered by the possible American criminal proceedings, whilst refusing to answer questions on others for wholly opportunistic and cynical reasons. You spoke about the areas where you felt you could most assist Palvinder Singh and you remained silent when you considered your evidence would be less helpful to him.

I reject, therefore, the suggestion advanced by way of mitigation that you acted in good faith in the stance that you adopted. I do not accept that the reasons that you expressed before me were in any sense genuine.”

The judge reiterated that he took the view that the prosecution was entitled to question the appellant about matters in relation to which he had already unequivocally and formally incriminated himself. He had not been required to answer questions outside the areas covered by his plea. The judge sentenced him to a consecutive sentence of 12 months’ imprisonment.

It is important to emphasise the basis upon which the judge made his ruling in order to identify the limitations of our judgment. The judge did not reject the appellant’s reliance on legal professional privilege on the basis of the principle that that privilege is unavailable in respect of foreign proceedings. There is ample authority for the proposition that the privilege does not apply in relation to offences under foreign law (see in particular Lord Diplock in Re Westinghouse Electric Corporation Contract [1978] AC 547 at 636 and Brannigan v Davison [1997] AC 238, a decision of the Privy Council). Although the decision in Re Westinghouse concerned s.14 of the Civil Evidence Act 1968, as Longmore LJ pointed out in C PLCv P [2007] EWCA Civ 493 at para 33, it can make no difference whether the privilege is invoked in civil as opposed to criminal proceedings. Whether the need for protection arises in civil or criminal proceedings must be irrelevant; the important feature of the privilege is that it provides protection against criminal proceedings.

But, it will be observed from our description of the judge’s ruling that he did not rely upon the principle that the privilege is not available in respect of foreign proceedings, which, in the instant case, is a prosecution in the United States. It is small wonder that he did not do so. He had no need to rely upon the principle in the light of his conclusion that the reasons advanced for refusing to answer were not genuine. We wish to make clear that we shall follow the deft footwork of the judge. Despite what has hitherto been believed to be clear authority for the principle that privilege is not available in respect of foreign criminal proceedings, the issue may need to be revisited in the light of Article 6 of the European Convention on Human Rights and in the context of extradition proceedings. That is not to indicate that there is any substance in reliance upon Article 6 but merely to avoid giving a decision on the question where it is unnecessary to do so. This judgment is not to be regarded as any authority one way or the other in relation to the availability of the privilege in respect of foreign proceedings where there is a risk of extradition.

The central basis on which the judge declined to permit the appellant to rely upon legal professional privilege was that he had already incriminated himself by his plea of guilty on the basis set out in the position statement of the Crown. This basis is challenged by the appellant on two grounds. Firstly, Mr McNulty, on the appellant’s behalf, contends that the plea of guilty in the United Kingdom proceedings was irrelevant since it provided no bar to extradition and proceedings in the United States. Secondly, he contended that if the appellant answered questions it would make it more difficult for him to assert, in any United States proceedings, that he had pleaded guilty only to secure the acquittal of Frzana Khan and not because he had in truth committed any offence.

The first basis need not detain us since s. 80 of the Extradition Act 2003 bars extradition in relation to an offence in respect of which the appellant has already been convicted. He is only at risk in relation to matters which are distinct from those contained within Count 1 of the indictment.

The second ground was the crucial argument advanced on behalf of the appellant. But its flaw lies in a failure to appreciate the nature of the privilege. The privilege is designed to provide protection for a person from being compelled by the state to convict himself out of his own mouth. (See Brannigan v Davison p249 B-C and John Murray (judgment of 8 February 1996, Reports of Judgments and Decisions 1996/1 cited at para 46 of O’Halloran and Francis for the United Kingdom (decision of the Grand Chamber 29 June 2007)). This protection is afforded to one who has a reasonable ground for apprehending a real and appreciable danger of incrimination (see R (CPS) v Bolton Magistrates Court [2004] 1 WLR 835 at para 24 p845).

It follows that protection cannot be invoked where the compulsion to answer questions creates no material increase to an existing risk of incrimination. This is the vital principle relevant to the instant appeal. If the compulsion to answer questions does not increase the risk of incrimination or strengthen the case against a defendant then there is no basis for affording that defendant protection against the questioning. The principle that there must be a material increase in the risk of incrimination finds support in a decision of the Court of Appeal in Khan v Khan [1982] 1 WLR 513. In civil proceedings, the defendants were required to swear affidavits setting out full details of the whereabouts of money which the plaintiff alleged had been stolen from him. As Griffiths LJ pointed out, the requirement to say what had become of that money had no bearing on his guilt of either theft or forgery (see p521 F). But the court also ruled that the compulsion to answer questions as to the whereabouts of the money added nothing to the existing risk of prosecution for theft. The first defendant had already admitted that he had made out a blank cheque signed by the plaintiff in favour of the second defendant. In the light of that admission, any further question as to what happened to the money did not increase the pre-existing risk of prosecution under the Theft Act (see p 520 G-H). The principle expressed by Stephenson LJ, endorsed by both Griffiths and Kerr LJJ, was that:-

“There must be a real risk of incrimination or material increase of an existing risk.”

It must be emphasised that the privilege is designed to provide protection in relation to questions which might incriminate. If the danger of incrimination has already arisen and is independent of any questions which a person is required to answer, it is not possible to see why that person should be entitled to any protection at all. If his position is made no worse by answering a question, then there can be no basis for him to invoke the privilege.

Faced with that principle, which Mr McNulty did not seek to challenge, the appellant contended that his position would be made worse because he would not be able to retract his plea of guilty in proceedings in the United States. This argument was founded upon a decision of the court in Den Norske Bank ASA v Antonatos [1999] QB 271 based upon the principle that a witness could not be required to give formal evidence about matters in respect of which he had already made a statement to the police. Waller LJ distinguished between someone making a statement to the police or to anyone else which might afterwards be retracted from an admission on oath in court which:-

“…makes the potentially retractable impossible to retract. If there is a risk of self-incrimination and if there is no bad faith a ‘no increase in risk’ must be almost impossible to establish.” (p.289)

The circumstances identified by Waller LJ are miles away from this appeal. Had the appellant answered questions about those matters which he had already formally admitted in open court, it is impossible to see how his position would have been worse than it already was in relation to potential criminal proceedings in the United States. He had not only admitted his guilt in relation to Count 1 but also had admitted all those facts set out against him in the prosecution’s opening note. In those circumstances, to answer questions about whether his plea of guilty was truthful or not or about the subject matter of the opening note made no difference whatever to the position he had himself, voluntarily, created. Any future case against him will flow entirely from his own confession and the terms in which it was made. It would be absurd if the appellant could resist any attempt to test his evidence in favour of Pavinder Singh by seeking protection against a danger which he had already created before he was asked any questions at all, either on behalf of Pavinder Singh or by the prosecution. It would have been quite wrong to permit the appellant to manipulate the court process by claiming protection against a danger which he had already created for himself. When he was required to answer questions about those matters which he had already admitted, he was not being placed under any compulsion to incriminate himself. That he had done already.

Accordingly, we endorse the basis upon which the judge required this appellant to answer questions. Those questions were limited to matters which he had already admitted. In those circumstances, he had not so much lost the protection of legal professional privilege, rather he was not entitled to any protection against a danger to which he was already exposed by his plea of guilty and the terms in which it was given.

It is apparent from the judge’s ruling that he regarded the attempt to invoke legal professional privilege as a sham. We quite understand why the judge took the view that the appellant had not acted in good faith and that the reasons he advanced were not genuine. Our analysis of his answers demonstrates that he merely chose to invoke the privilege when he thought it would suit him to do so, in other words where to answer might cast doubt on his evidence in support of Palvinder Singh. But we should sound a note of caution. It is dangerous to assess the strength of the claim to privilege on the basis of the motive of the person seeking to invoke it. There will be many cases where it will be “convenient” for a defendant to rely upon the privilege. Often his motives will be mixed. But even if the motives are mixed that is no basis for refusing the protection against self-incrimination. The court should not refuse protection merely because it suspects the good faith of the person seeking to deploy the privilege. After all, the principle applies to one who wishes to avoid conviction as much as to the innocent who wishes to avoid the inconvenience of a prosecution. The point was best expressed by Kirby P in Accident Insurance Mutual Holdings Limited v McFadden [1993] 31 NSWLR 412 cited with approval in Den Norske Bank at 287 B:-

“What is in issue, ultimately, is not the subjective fears of the witness claiming the privilege but the objective tendency of the question to expose that witness to the risk of criminal prosecution…one witness may have multiple motives and even mala fides. But if the question is such in fact as to expose him or her to the risk of future prosecution, it is the duty of the judicial officer to uphold the privilege.”

In short, although it is plain that the appellant’s motive was to avoid his evidence in support of Pavinder Singh being tested by the prosecution, that was not a basis upon which the court could refuse to uphold his claim to legal professional privilege. Rather, we reject this appeal, on the basis that the questions he refused to answer did not expose him to any increased danger of incrimination. On the contrary, any danger to which he was exposed already existed as a result of his plea of guilty.

For that reason we reject this appeal. There is no appeal against the lenient sentence of 12 months’ imprisonment. We remark that it was lenient since by the time this appellant’s evidence was concluded, he had almost given up the process of reciting the mantra of protection against self-incrimination which he had, with such persistence, incanted. The appeal is dismissed.