Khyam & Ors,R v

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.

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.

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 2005 was vacated. Dealing with it very briefly, the context was the urgent interests of both the prosecution and the defendants themselves (two of whom were, as already noted subsequently acquitted by the jury) in the start and eventual conclusion of this very lengthy trial. On 10^th October, during the course of a pre-trial hearing, when counsel for the Crown were seeking to establish precisely which witnesses were required by the defendants to attend the trial, the trial judge observed that the then new date fixed for trial would not be vacated, (an aspiration which was not in the result fulfilled), and continued:

“Already there (has) been a request from the Lord Chancellor who is the senior judge (to) the President of the Queen’s Bench Division as to the reason …why this trial was put back. It was accepted it was put back for perfectly good reasons, but everybody is anxious that it should come on for trial when the trial date arrives. So the witness requirements to be notified to the prosecution within 14 days from today please.”

The transcript is plainly faulty, and necessary amendments have been shown in brackets.

So that there should be no mystery about it, the parties to the application were told that the PQBD had indeed made inquiries of the trial judge why the trial date had been vacated, and that he had told the judge that the Lord Chancellor, too, wished to know the reasons. The explanation was given and, as the judge recorded in his observation on 10^th October, it was plainly justified. The PQBD agreed and informed the Lord Chancellor. That was the only such conversation between the PQBD and the judge, and there was no further communication, direct or indirect, between the judge and the Lord Chancellor or anyone else on his behalf. At the time when the judge made this observation no immediate excitement or particular interest was generated by it.

On 24^th October the issue of the judge’s possible recusal was raised for consideration in the context of dissatisfaction with the disclosure process as it affected Amin’s contention that the case against him should be stopped as an abuse of process of the kind deprecated in R v HorseferryRoad Magistrates Court, ex parte Bennett [1994] 1 AC 42 and R v Mullen [1999] 2 CAR 143. It was subsequently supported by a skeleton argument dated 16^th November which referred to the possible need for a “special advocate”, and the recusal of the judge in the context of the lengthy process “of making ex parte judgments, which cannot fail consciously or unconsciously” to affect the way in which he would address the evidential issues before the jury. “This may very well become one of those very exceptional cases calling for the recusal of the trial judge: see R v H and C at para.35”. Nothing was made of the conversation described by the trial judge on 10^th October.

The judge made two further observations based on this conversation. The first occurred on 30^th November when the judge’s ruling that parts of the trial should be heard in camera was the subject of an appeal to the CACD. The judge anticipated that the court would give the hearing some priority. He said:

“I know the judgment will be done as quickly as possible because it is appreciated in the Court of Appeal the urgency of this matter being brought on for trial ...that urgency was brought to their attention by I think an inquiry from the Lord Chancellor to an earlier point which I have already referred to, as to why this trial was put back from …September …to the present date. While the explanation for that has been given and has been considered to be, if I may say so, completely satisfactory, but it does mean that the Court of Appeal is now conscious of the Lord Chancellor’s concerns and everybody else’s concerns that this matter be tried as soon as possible, so that expedition will be in the mind of the Court of Appeal.”

Again, at the time, this observation raised no concerns.

On 30^th January the abuse of process argument on Amin’s behalf began. The possibility of the judge recusing himself was again touched on, but, as before, it was related to concerns about the disclosure process. Overnight, so we were told by Mr Patrick O’Connor QC on Amin’s behalf, it was decided that it was appropriate to apply to the judge to recuse himself because counsel were troubled about the disclosure process, and the fact that the judge who had supervised it was being invited to draw adverse inferences against the prosecution. The application was rejected. Amin started to give evidence in the voir dire, and completed it on 1^st February. He called a witness in support, whose evidence concluded on the following day.

On 2^nd February, during the course of Amin’s application, Counsel for one of the defendants was seeking such assistance as the judge could give with the arrangements it was proposed to make to try and ensure that a witness living in Pakistan would be available as a defence witness at trial. The judge observed:

“I do not want any …further delay in the pre-trial proceedings, and the nature of these proceedings, not these particular ones…but all of these proceedings has already involved considerable delay. It is important in this case and that is a view held not only by myself on behalf of the defendants and the prosecution but on behalf of Her Majesty’s Government that this trial takes place as soon as possible and every single step has to be taken by those who are capable of taking these steps to ensure that there is no delay…those who make those decisions must bear in mind my comments about the need for there to be no unnecessary delay.”

Following the judge’s observations on 2^nd February, a written application inviting the judge to recuse himself was again submitted on behalf of Amin. In this application reference was made to the conversation between the trial judge and the PQBD, and the PQBD and the Lord Chancellor. It was and is accepted that the observations made by the judge on 30^th November and 2^nd February simply echoed what the judge had said on 10^th October, and did not represent any further or additional conversation. Nevertheless the submission on behalf of the applicants, led by Mr O’Connor, was that this communication from the Lord Chancellor was improper, and influenced or improperly interfered with, or would appear to influence or interfere with, the judge’s conduct of a number of issues. These included the abuse of process argument, an argument that a special advocate should be appointed, and indeed the submission that the trial judge should have recused himself. The application was rejected on 6^th February, the judge observing:

“It is fanciful even to contemplate that an executive comment not directed to this court and not received directly by this court should be interpreted as external pressure, particularly when the court has many times over the months occupied by pre-trial submission independently exhorted the parties to keep to set trial dates in the expressly stated interest of doing justice to the defendants”

These issues were raised for decision in the present applications, and it is in that context that as the person who had communicated the Lord Chancellor’s concerns, it was submitted that the PQBD, while not acting improperly when seeking the information for his own purposes, would not be in a position “to be seen fairly to try the complaints now made in the appeal in relation to the judge’s rulings on abuse of process, the appointment of a special advocate, and the trial judge’s own recusal”.

Mr O’Connor went on to suggest that the request for information by the Lord Chancellor should be seen in the context of the Terrorism Bill 2005, introduced into the House of Commons on 12^th October 2005 with a second reading shortly afterwards, and debates which continued into 2006. This was, he suggested, “a very controversial Bill with high political stakes”. The Lord Chancellor was a cabinet minister, and the timing of the communication between him and the PQBD “in the absence of alternative explanation” manifested what was described as a “purely political interest in the timing of this first high-profile “Islamic” terrorist trial in order to give a propitious illustration of “threat” during the relevant Parliamentary debate: and in order to enhance the chances of government success in those debates”. The PQBD should recuse himself because, by passing on the interest of the Lord Chancellor in this trial, and the reasons why a fixed date was vacated, the PQBD will have considered that there was nothing wrong with the communication from the Lord Chancellor, and nothing wrong with “passing on his sentiments to the trial judge” and therefore nothing wrong with the trial judge acting on them.

Our attention was drawn to a number of well known authorities. We shall not list them. We were asked to proceed on the basis that the accepted test was laid down in Porter v Magill [2002] 2 AC 357 para 103, “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

In our judgment the submission is entirely misplaced. It fails totally to acknowledge the Lord Chancellor’s then constitutional position as head of the judiciary, and his then and present responsibilities to Parliament for the efficient operation of the criminal justice system. The judiciary as a whole had, for some time before September 2005, been waging a constant battle against what we shall describe as the culture of adjournment, with its adverse consequences for many of those involved in the criminal justice process, not least defendants, particularly those remanded in custody, who are by no means always personally responsible for the inevitable delays. The postponement of this particular, very high profile trial, long after it had been fixed, needed to be explained, not merely to the parties themselves but if necessary to the public at large. Accordingly this information was sought by the PQBD from the trial judge, who was told of the interest of the Lord Chancellor, and who presumably understood that the explanation given to the PQBD would indeed be conveyed to the Lord Chancellor (as it was). By way of emphasis, there was no reason why it should not have been. Thereafter, quite rightly, the judge drew attention to these communications between him and the PQBD. The parties were told what had happened, and that was, or appeared to be the end of the matter, until it was later resuscitated.

The Terrorism Bill was not engaged directly or indirectly. As it happens, we are unaware of, and our attention has not been drawn to any public remarks by the Lord Chancellor (or any other Government minister) about the reasons for this particular postponement, and no one has suggested that the debate of the Terrorism Bill included reference by Government ministers to the postponement of this particular trial as a means of persuading either House to pass the Bill.

This communication between the PQBD and the judge was a legitimate request for information about the progress, or apparent lack of progress of a high profile trial. It did not constitute any Government or executive interference, direct or indirect, in the judicial process. We shall in due course address the question whether the judge may have sacrificed the interests of justice to avoid further delay and whether the decisions of which complaint is now made were right or wrong, or ones which might undermine the safety of these convictions. What however is abundantly clear is that the judge himself was already heavily committed to advance the progress of this trial, and if at any stage he acted with undue haste, making decisions on the basis of inflexible adherence to a timetable rather than the overall interests of justice as a while, it was not a consequence of the fact that the PQBD and the Lord Chancellor were seeking to know the reasons why this particular fixed trial had been abandoned. However the clear view of each member of the present constitution of the court is that nothing in the conversations between the PQBD and the trial judge, nor in the fact of such a conversation, begins to require or justify the recusal of the PQBD.

A separate ground for recusal is advanced on behalf of Mahmood in the context of the decision of this court, presided over by the PQBD in K [2006] EWCA Crim 835. It is a ground of appeal by Mahmood that the judge wrongly excluded the evidence of an expert witness from the USA, Joshua Dratel, about his experience of procedure in that jurisdiction. During the course of the judgment in K, where the CACD was considering the admissibility of the evidence of Babar, and the adequacy of prosecution disclosure, at paragraph 16 the court said “…we are not assisted by evidence that there are occasions on which the authorities of the USA failed to comply with their own procedures…”. That observation was made in the context of the issue before the court, whether it was fair to the defendants for Babar to be called by the prosecution. The question whether the exclusion of Dratel’s evidence was wrong falls to be decided on the arguments as they develop before us. To the extent that the court may be bound by its decision in K, that decision would bind it however it was constituted. However on the face of it, in any event, the court in K was not addressing the admissibility of Dratel’s evidence, and if this ground of appeal were well founded, any careful examination of the judgment in K by an independent fair minded observer would not reveal any basis for concluding that the PQBD might reasonably be perceived to have, in effect, already made up his mind adversely to the applicants’ case on the issue or more generally. We would simply add that there is no rule that a judge who has formed part of a constitution considering an interlocutory appeal from a decision by a judge at a pre-trial hearing is precluded or disqualified from sitting on any subsequent appeals or applications for leave to appeal. There will, indeed, be many occasions when it is desirable that he should. Accordingly this basis for seeking the recusal of the PQBD also failed.

Questions have been raised whether any improper monitoring of communications between more than one of the present applicants and their legal advisers took place when the applicants were remanded in custody in HMP Belmarsh in 2004 and 2005. The privilege attached to communications between those suspected of criminal offences and their legal advisers is an essential ingredient of the administration of criminal justice. Any deliberate unauthorised interference with this privilege, or even an authorised infringement of it based on improper or inadequate grounds may, of itself, be treated as an abuse of process sufficient to justify the court ordering that the proceedings should be stopped.

It is in effect contended that there is a reasonable basis for suspecting that their conferences with their legal advisers may have been subject to “bugging”. If so, any evidence of such bugging should be disclosed, and furthermore, that the court should seek to assure itself that no such bugging has occurred, so that the applicants can be informed of the fact and the “long established confidence reposed in legally professionally privileged communications may be re-established”. In effect, there is an application under section 8 of the Criminal Procedure and Investigations Act 1996 for “disclosure of any material … concerning intercepts of legally professional privileged material at any stage during the course of these proceedings”.

Concerns about this issue are not based on any specific feature of the investigations which culminated in these convictions, nor indeed on the basis of any single piece of information or material which may tend to suggest that the legal communications involving any of these individual applicants were subject to “bugging”. However concerns about intercepted communications between a Member of Parliament and his constituent held on remand at Woodhill prison in 2005 and 2006, contrary to a longstanding prohibition, led the present Lord Chancellor and Secretary if State for Justice to set up a review by Sir Christopher Rose, Chief Surveillance Commissioner, into possible abuses of the system since 2005. Nothing in his review suggested that improper bugging of the applicants’ communications with their legal advisers had taken place, but some of them, at any rate, were remanded in custody in 2004, before the dates to which Sir Christopher’s review applied. The issue was revived by a report in the media in February 2008, basing itself on information from an unidentified individual which suggested that very many lawyers participating in prison visits to their clients were “bugged”. This information appears to coincide with a prospective trial of a former detective Sergeant with Thames Valley police who, with others, is facing trial at Kingston Crown Court in relation to allegations of misconduct in public office.

The position of the Crown is clear. It is accepted that the proper performance of the Crown’s responsibilities in relation to disclosure under the 1996 Act (which applied to the present investigation), as amplified by the Attorney General’s guidelines on disclosure, the Disclosure Protocol and the Disclosure Manual, as well as the decisions of this court in Grant [2005] 2CAR 409, Alibhai and others [2004] EWCA Crim 681, M and others [2003] EWCA Crim 3764 and re R v H and C [2004] 2 AC 134 require it to pursue all reasonable lines of inquiry of third parties, and that this responsibility extends to reasonable inquiries into the possible availability of material which might provide support for a submission that the court should stop a prosecution as an abuse of process.

We have been assured that the Crown has made inquiry, or caused inquiry to be made, “of all UK agencies likely to have any material touching” this issue. Following that investigation “there is no further material to be disclosed”. The position of the Crown Prosecution Service is set out in a letter dated 23^rd April 2008 which reads:

“In accordance with its usual stance concerning matters of covert investigative techniques, the prosecution will not, in terms, confirm or deny the existence of such sources of information in any particular case but, instead, will properly discharge its statutory and other disclosure functions. This stance is unaffected by the decision of one or more institutions in other unconnected cases, and not routinely involved in the prosecution of serious criminal cases, to give a specific negative answer.”

The assurances given by the Crown do not satisfy the applicants. They wish the Crown to satisfy the court, if necessary on the basis of showing material to the court ex parte and by taking evidence on oath that “no bugging has occurred”. This was the course adopted by Calvert-Smith J in a current trial at Woolwich Crown Court (Abdula Ali and others), where, after the judge had given a brief ruling, which was said to lack a “degree of clarity” to a lay person, the judge positively answered that he was “satisfied ex parte, and for good reasons ex parte, on evidence on oath, that no bugging had occurred”.

We do not propose to comment on the course taken by Calvert-Smith J. If he was satisfied that the interests of justice in the particular case required him to take the steps he did, he was both justified and right to do so. It is not however realistic to argue that the approach taken in a specific individual case should become general. The present trial falls within the broad band of normal cases where the court should proceed on the basis that if the Crown has addressed its responsibilities in the context of the specific problem of possible improper “bugging” of legally privileged communications and the consequent availability to the defendant of an abuse of process argument, no further steps are required. In the present case, Mr David Waters QC was asked this specific question:

“Can we take it … the duties of disclosure are acknowledged by the prosecution to extend to any possible abuse of process in the context of legal professional privilege?”

Mr Waters replied “most certainly” and “they were applied throughout this trial and will be applied throughout the appeal”.

In our judgment that is an ample and sufficient assurance on which to proceed with the present applications. In short therefore the position adopted by the Crown, that it will neither confirm nor deny the existence of any such material does not undermine or dilute the assurance that there is no further material to be disclosed; and, where any such material exists to which public interest immunity principles may apply, it does not permit the Crown to avoid drawing the attention of the court to it for decision in the now familiar way. In the final analysis the question is not whether an individual applicant, or his legal adviser, is unhappy or discontented with assurances of this kind: this is the method by which these issues are addressed in our criminal justice process.

Mr O’Connor’s primary focus before the judge, and before us, was not Amin’s confession shortly after his return from Pakistan to the UK, but his arrest and detention in Pakistan and his return to this country. These were said to constitute an abuse of executive power by the authorities in Pakistan and the UK. Reprehensible behaviour by security officers in Pakistan which amounted to torture or ill-treatment of Amin within Article 3 of the European Convention of Human Rights, and participation or complicity by UK authorities in that abuse, were said to constitute an abuse of executive power by the authorities in Pakistan and the UK. Accordingly any trial would amount to an abuse of the process of the court undermining the rule of law itself. It should therefore be stayed on the basis of the principles identified in R v Horseferry Road Magistrates’ Court, ex parte Bennett,R v Latif [1996] 1WLR 104 and R v Mullen. Mr O’Connor’s secondary submission at trial was that Amin’s answers in the interviews in the UK reflected the answers extracted from him by torture and ill-treatment in Pakistan, and should therefore be excluded under section 76 and 78 of the Police and Criminal Evidence Act 1984. Both submissions were rejected by the judge. The complaint is that they should both have been allowed.

It was an inevitable consequence of Mr O’Connor’s criticisms of the UK authorities, and his assertions that they were complicit in the abuses to which Amin was allegedly exposed that the process of disclosure was required to be meticulous and unrelenting. From the Crown’s point of view, fully appreciating its disclosure obligations, the process was not eased by the fact that the disclosure issue involved the co-operation of security agencies in sovereign states, whose approach to these problems would not necessarily coincide with our own. It is idle to pretend that these processes can be considered in a legal vacuum. Putting it neutrally, the control of terrorism in this country is at least in part dependent upon information being passed from foreign security services to our own. It is not in the national interest that valuable sources of information, which may frustrate an intended terrorist attack, or help to identify those responsible for one, should dry up. These considerations impacted on the disclosure arrangements in this trial in two different respects. First, the process was far from straightforward. The prosecuting authorities in this jurisdiction simply cannot compel authorities in a foreign country to acknowledge, let alone comply with, our disclosure principles. Second, equally obvious at a very brief glance, is that given the nature of this crime, and legitimate concern internationally that so far as possible terrorism should be eradicated, public interest immunity principles would inevitably arise for consideration.

Mr O’Connor launched a detailed and lengthy criticism of the entire disclosure process. He drew our attention to specific errors and omissions. For example, [redaction]At the outset of his submission Mr O’Connor contended that disclosure was dilatory and incomplete, slack and, on the basis of an examination of the entire disclosure process, flawed. In accepting or permitting disclosure to proceed in this way, it was, according to his contention, demonstrated that the appropriate level of judicial oversight and supervision was not provided. This then called into question whether the process itself, as conducted by the Crown, and supervised by the judge, was sufficiently stringent to ensure that the court, and Amin’s legal representatives, were provided with all the material which should have been available to ensure a just outcome to the abuse of process submissions, and meant, in effect, that there were reasons to doubt whether it could be said with confidence that all material bearing on this issue had been revealed.

At this stage we record that, during the course of the hearing before us, without withdrawing his contentions that the process of disclosure was piecemeal, protracted and dilatory, Mr O’Connor indicated that he would no longer continue to assert that the Crown failed to approach its responsibilities in relation to the disclosure process in good faith. Furthermore, again without withdrawing his submission that the judge should have recused himself because of the material he had examined in the course of the public interest immunity proceedings, he no longer suggested that the proceedings themselves were conducted with insufficient rigour.

In the course of the disclosure process it is inevitable that a trial judge may read material which reflects adversely on the defendant. At the same time as it is integral to his performance of his responsibilities that, whatever order he may make at an early stage in the proceedings, the judge must remain alert to the possibility that as the evidence unfolds, material which appeared to be of no potential value to the defendant, may assume sufficient importance to require its disclosure. That essential ingredient of the judicial function applies to both aspects of the judge’s responsibilities, first, when he is dealing with matters of fact which ultimately require the verdict of the jury, but also when questions of fact and law arise for his decision in the course of the trial process. In consequence the judge revisited the disclosure process more than once during the course of this trial.

Amin’s abuse of process argument based on complicity required the judge, first, to consider whether any, and if so what material, examined by him in the public interest immunity process should be disclosed to the defendant, and then to consider and rule on the complicity application in the light of the evidence and legal submissions advanced to him. In this particular case, he was required to make and he made findings of fact, some of which were adverse to Amin in the sense that he rejected some of his more serious allegations of ill-treatment and torture at the hands of the security authorities in Pakistan. Mr O’Connor raised the suggestion that perhaps the adverse findings against Amin may have been based, at least in part, on “secret” material which the judge may have read during the course of the public interest immunity proceedings. Having studied the relevant judgment and looked at the material, we are confident that that contention is not sustained. Nothing seen by the judge could or would have impeded the judicial objectivity which was a pre-requisite to these decisions. In reality the question whether the judge should have considered recusing himself on the exceptional basis identified in R v H and C did not begin to arise.

We must analyse the facts in some detail. In March 2004, [redaction] the authorities in Pakistan to detain Amin [redaction] although residing in Pakistan at the time, Amin was a British citizen with a UK passport, who could have returned here whenever he so wished. Amin’s detention was not effected because he disappeared into hiding. The ISI contacted Amin’s uncle, a retired brigadier in the Pakistani army. He spoke to his nephew and encouraged and persuaded, but did not force or compel Amin to surrender to ISI, which he did on or about 3 April 2004.

During the first three weeks of his subsequent detention Amin was interrogated by officers of the ISI. His most serious allegations about the way in which they treated him were rejected by the judge, but the judge accepted that Amin was subjected to what in this country would be regarded as ill-treatment of an individual in custody. [redaction]

During the course of these many and various interviews [redaction] Amin made detailed and extensive admissions about terrorist activity in Pakistan. These included his own role in raising money and providing equipment for Al Qaeda in Pakistan, his involvement in the organisation of training camps within Pakistan, and his access to senior members of Al Qaeda based both in Pakistan and across its borders. Those admissions were, of course, of specific interest to the ISI. However Amin also admitted assisting Khyam by providing him with the appropriate formula to create an explosive device in the UK. That was of direct relevance to the security issues raised in this conspiracy. Interviewing by UK officials in Pakistan ceased in July. At some stage in the process, under Pakistani law, his continuing detention became unlawful.

On 8^th February 2005 Amin was placed by ISI on a direct flight from Pakistan to Heathrow. Prior notice was given to the anti-terrorist squad in London. When he arrived at Heathrow Amin was arrested and taken to Paddington Green station where he was interviewed. During the course of these interviews he made the long detailed admissions of his involvement in this conspiracy to which we have already referred. On his own account, all these admissions were voluntary. The interviews were recorded simultaneously on tape and video. The videos were examined by the judge, and later the jury. The judge concluded that the interviews were conducted “impeccably”. Amin himself did not suggest otherwise.

After the interviews had been in progress for a little while, Amin complained to the interviewing officers that he had been tortured into making false admissions in Pakistan. This complaint was later put into writing. He subsequently complained to a forensic medical examiner that he had been beaten with a lash. No complaint was then made about ill-treatment to which UK services were party. Amin also suggested that he had been told by ISI that he was detained “on the authority of the British”, and that when he left Pakistan he was told by the ISI that he had been cleared and would be free, and so he consented to fly direct to London. In his evidence he repeated his account of torture and ill-treatment in Pakistan, and the assurances he asserted he had been given by ISI officials.

As we have already noted, Amin was arrested immediately on arrival at Heathrow on 8^th February. He was charged on 12^th February. He made his first appearance at the Magistrates Court 2 days later. A preliminary hearing took place on 21^st February. The case was listed for mention before the trial judge on 22^nd April. An extension of time was granted for the serving of defence case statements. A directions hearing was fixed for 30^th June, and the trial fixed for 10^th October.

On 3^rd May Amin’s new solicitors wrote to the Crown Prosecution Service requesting disclosure of a number of documents including “all records, documents and communications between UK/US and Pakistan authorities concerning the apprehension, detention, interrogation and treatment of the defendant whilst in custody in Pakistan” and all such documents regarding his “deportation” to the UK. Details were requested of any attendance notes made by members of the UK security services (or any representative of the UK authorities), or any attendances on him by US security agents while he was in custody in Pakistan. Information was also sought to enable the defendant to prepare an argument on the admissibility of his interviews in this country, and a request was made for “all records of …alleged confessions”, “not least in order for the defence to be in a proper position to instruct any expert(s) to advise on the question of the defendant’s psychiatric and psychological state …”. Finally, any information/records “bearing upon the legality of the defendant’s removal from Pakistan to UK in February 2005 must be disclosed before the defence can properly prepare any abuse of process argument”.

The CPS responded a few days later. The written submission prepared by Mr O’Connor for present purposes provides an adequate summary. “The matters raised were subject to PII and ….material that might be in the hands of the Pakistani authorities was included in a draft Letter of Request…it was necessary be “cautious”, in not making a “tactless” approach to such an authority as it might “meet with a blanket refusal””. The letter pointed out that communications between UK and foreign government departments and prosecuting authorities were generally subject to PII, and that there was no guidance, and comparatively little case law, on “the steps to be taken where the material is in the hands of agencies outside the UK”. The CPS intended to approach the problem as if it were similar to the one suggested in guidance which applied to material in the hands of third parties.

On 13^th June the defence case statement was served. Involvement in the conspiracy was denied. It asserted that Amin was detained for many months, and treated “inhumanely” and that he was “tortured in order to procure from him false confessions”. The false confessions were “the creation of his interrogators who forced him to adopt the content”. His admissions in police interviews in the UK were “false admissions which adopted part of previous false admissions that had been extracted from him during his detention in Pakistan”. This formed the basis for the application under sections 76 and 78 of the 1984 Act. The defence case statement further asserted that Amin was “unlawfully removed from Pakistan…in order to facilitate his detention and interrogation in UK custody”.

Shortly afterwards a further letter was sent from Amin’s solicitors to the CPS in relation to disclosure, repeating the requests made in the letter dated 3^rd May, and seeking “additional clarification” of a number of points”. In preparation for a plea and directions hearing on 30^th June a defence skeleton argument highlighted a number of matters in relation to Amin’s detention in and departure from Pakistan which required scrupulous compliance with the prosecution’s duties in relation to disclosure which applied particularly to “UK state involvement in and/or knowledge of Mr Amin’s treatment in Pakistan, of which Mr Amin and his lawyers can have little or no information”. The defence statement and skeleton argument led the prosecution to conduct an extensive review of what is described as third party material, seeking to address the possibility that an abuse of process argument on the basis of the detention and removal of Amin from Pakistan, and a separate submission that the evidence of the interviews in the UK should be excluded, might both be available.

The judge made appropriate orders that the Crown should serve the material bearing on these issues which was already in their possession within 7 days. Thereafter notes [redaction]were disclosed. Shortly afterwards, the CPS confirmed that secondary disclosure was incomplete and that no PII application had taken place. On 10^th October a hearing took place before the judge. He ordered that the hearing on 21^st November would be a preparatory hearing. Complaint was made about the delay in disclosure. The prosecution notified Amin’s advisers that there would be a PII hearing on 24^th October. When this took place the judge made an order for further disclosure by the prosecution. One week later the prosecution confirmed that further inquiries were being made in relation to material from Pakistan, and in response to a letter from Amin’s solicitors seeking urgent disclosure, they were informed that a further PII hearing would be taking place. This took place on 15^th November. On the following day, a directions hearing took place. It was backed up with a further defence skeleton argument relating to disclosure. Thereafter there was legal argument about whether those parts of the trial which referred to material disclosed by the Crown should take place in camera. The judge’s decision that it should was subject to an appeal to this court, which was dismissed in early January.

On 5^th January the prosecution disclosed “information [redaction]This document was known as MS/1. [redaction] It set out a number of important facts, but although the response from Amin’s legal advisers did not “cast doubt upon the difficulties that the Crown claim to have encountered, or their good faith,…” the summary was said to be “singularly disappointing and unhelpful”. Further clarification was sought, along with further disclosure arising from the contents of “MS/1”. The prosecution prepared a further document, “Further Disclosure re Amin”. After it was scrutinised and eventually approved by the court during an ex parte hearing, it was disclosed on 25^th January as MS/2, which itself was 35 pages long, with 36 pages of annexes. The response of Amin’s legal advisers was, in effect, to seek further and better particulars of this material. A further review then took place. This produced a “Third disclosure response re Amin”. This was MS/3.

The abuse of process hearing then proceeded. Amin gave evidence: so did the uncle who had encouraged him to surrender himself to ISI. The prosecution called evidence. The prosecution disclosed MS/4, “Response to further disclosure issues: 3/2/06”. MS/5, “further disclosure memorandum 9/2/06”, MS/6, “further disclosure memorandum 10/2/06” and MS/7, “second further disclosure memorandum 10/2/06” They were produced and disclosed to address issues raised on Amin’s behalf in the course of the abuse of process hearing. MS/8, “further disclosure memorandum 30/2/06” was disclosed before the conclusion of the hearing of the abuse of process submission. On 17^th February the abuse of process submissions were rejected.

Much later, at the close of the prosecution case before the jury, following a request by Amin’s legal advisers for confirmation that the UK authorities had requested disclosure from the authorities in Pakistan of any records relating to the detention and questioning of the appellant, the prosecution disclosed MS/9, “response to further disclosure request on behalf of Amin”. On 16^th November, following the court’s ruling that the answers given by Amin during cross-examination on the abuse of process argument should not be admitted before the jury, two further documents were provided “response to further disclosure requests”, and “additional disclosure re de-briefs [redaction] These were MS/10 and MS/11. Thereafter Amin gave evidence before the jury. No further disclosure was sought or given before the end of the trial. For the purposes of these applications MS/12 and MS/13 were produced in response to a series of contentions or requests advanced or made by Mr O’Connor.

Some of Mr O’Connor’s complaints about the process of disclosure were legitimate, other perhaps less so. The disclosure process was undoubtedly slow and piecemeal, although again in fairness some of the later disclosure was provided in response to issues raised from time to time which the prosecution might reasonably not have anticipated. On the other hand the narrative of the history also demonstrates that the prosecution kept the disclosure issue under constant review. In any event, however, while disinclined to ignore some of the problems faced by the Crown, we can see the force in the submission that from the point of view of Amin’s legal advisers it would have been preferable for the preliminary stages to have been completed with greater expedition. Accordingly we have examined the entire process. In our judgment the judge conducted each one of the public interest immunity hearings with the appropriate principles well in mind. In addition, before the hearing of the applications began, each member of the present constitution of the court examined every piece of documentary material for which a public interest immunity claim had been successfully made by the Crown to the trial judge. Our judgment was, and at the end of the hearing remained, that nothing which should have been included in the process of disclosure had been omitted from it.

The question nevertheless remains whether this aspect of the complaint prejudiced the outcome of the abuse of process argument. The short answer is that it did not. The material available to be deployed before the trial judge and the jury was deployed, as appropriate, and the material deployed before us which was not deployed before either the judge or the jury did not, and could not, on close analysis, suggest that if it had been available at the abuse of process hearing, the outcome might have been any different.

Much was made before the judge of the possible deployment of a special advocate in accordance with R v H and C [2004] 2 CAR 179 to provide him with assistance in the process. He did not require that assistance: neither did we. We have also considered the assertion that the public interest immunity process may have been misused by the Crown, or even that, in the light of the successful resumption of the democratic process in Pakistan, the basis for the public interest immunity decisions may no longer subsist. Again, we have satisfied ourselves that it was not misused, and that in the light of up to date information prepared for the purposes of the hearing, it does subsist. In any event, our decision on disclosure, like that of the judge, was reached on the basis that the documents for which the public interest immunity claim was made would not have begun to assist Amin to demonstrate the complicity or involvement of the UK authorities in conduct which might arguably found what we shall describe as a Mullen basis for ordering a stay of the proceedings.

Much of Mr O’Connor’s complaint in relation to the disclosure process, properly analysed, amounted to a criticism of the process itself. The defence participation in the process is inevitably limited, and, to the extent that the public interest immunity application is upheld, the defence cannot know the reasons for the decisions. That however is the very nature of the process. Rightly, the disclosure rules are designed to provide the defence with material available to the Crown which, one way or another, may assist the defendant to meet and answer or undermine the prosecution case against him. The public interest immunity process is directed at the same objectives, but, where it arises, subject to a structured filtering process. Both are intended to advance the overall interests of justice.

Accordingly we reject the grounds of appeal advanced on the basis that the trial judge failed to conduct the pre-disclosure process in a way which minimised the restriction upon equality of arms, that he wrongly approved the outcome of the disclosure process or that the defence was improperly or significantly hampered in properly investigating and exploring material relevant either to the issue of UK complicity, or to the admissibility in evidence of his London interviews.

It was suggested at trial that these admissions should be excluded. Reliance was placed on the familiar provisions of section 76 and 78 of the Police and Criminal Evidence Act 1984. The submission was renewed before us.

As we have already recorded, Amin was represented throughout these interviews; indeed he had access to independent legal advice before any questioning began. The entire process was recorded in video form. His demeanour and that of his solicitor throughout these interviews were apparent to the judge who looked at them. No criticism was directed at the interviews. They were, as the judge put it, “conducted impeccably”. The interviews conducted [redaction] of Amin in Pakistan were directed to possible intelligence of value to public safety here. Once in the UK he was interviewed as a suspect. Both in the UK and in Pakistan, when seen [redaction] he was treated with due courtesy.

In essence the submission on his behalf was that the treatment to which Amin had been subjected in Pakistan amounted to oppression within section 76, and that it was these interviews which produced the confessions made by Amin in this country. Accordingly they were “unfairly obtained”.

The judge noticed that the admissions made by Amin in Pakistan were never referred to and were never used by the interviewers in this country. They therefore did not remind him of what he had said many months earlier, when the interrogation process in the UK was concluded.

The essence of the submission is that Amin was treated so badly in Pakistan that, notwithstanding that the interviews in the UK were properly conducted, they were tainted by the earlier torture and ill-treatment, and for this purpose the fact that on Amin’s own account, his ill-treatment ended 6 months before the interviews in the UK began, was irrelevant. The ill-treatment described by Amin in his evidence to the judge was of a severe and extreme kind.

The judge accepted that the defendant was ill-treated during his interrogations in Pakistan. In this country his treatment would be “wholly unacceptable”, and would have amounted to “oppression” for the purposes of section 76. However he rejected the defendant’s evidence about the extent and severity of that treatment. He explained the considerations which led to this conclusion. We need not set them out. They are unassailable. The judge was satisfied that the interviews in the UK were admissible and they stood “free, independent and untainted by the physical oppression inflicted many months before and …his subsequent detention”. Moreover the admissions were not unfairly obtained, and were not, directly or indirectly, the product of the earlier ill-treatment to which Amin was exposed in Pakistan.

Two major criticisms were made of these findings. First, the judge was wrong to allow the Crown to cross examine Amin about the truth of the admissions he made [redaction] in Pakistan. Second, the judge treated material found in the MS documents as if they were “admitted”, when they had not been proved. In effect he is said to have blurred the distinction between disclosure and evidence.

The short answer to the first criticism is that the foundation for Amin’s contentions in relation to both abuse of process, and admissibility of his interviews was the fact of torture and ill-treatment to which he had been subjected while detained by ISI, and UK complicity in it. The cross examination was directed to his creditworthiness on both issues, in particular, whether there was any truth in the allegations of torture, and whether he was genuinely able to recall the fictitious admissions made in Pakistan, and repeat them ten months later when he was fairly interviewed as the “fruits of torture”. Although we understand that an initial objection was taken by Mr O’Connor to this line of cross-examination, rightly, it was not pursued. In our view the cross examination was permissible. It was not addressing the question whether the admissions in Pakistan were true, so as to enable the Crown to rely on them, but rather, whether the record of interview, including admissions, threw light on Amin’s treatment [redaction] , and their own judgment and understanding of the way he was being treated in Pakistan, and how he came to make the admissions he did make in the UK. The Crown never sought to use the admissions made by Amin in Pakistan as part of the case demonstrating his guilt of this offence.

The use of the admissions made by the Crown in the course of the disclosure process was inevitable. The material was produced to comply with the Crown’s disclosure obligations, and in answer to direct requests by the defence. They were used by Mr O’Connor for the purposes of cross-examining the witnesses called by the Crown as if they were indeed true facts. The subsequent skeleton submissions by Mr O’Connor made reference to them in support of his argument. Indeed the admissions were integral to and provided the structure for the submission. Accordingly, too, this criticism is not sustained.

Mr O’Connor’s starting point was that the reputation of ISI must have been known to UK officials [redaction]. Accordingly he contended that they must have appreciated that Amin would be tortured and ill-treated in a way which would contravene his rights under Article 3 of the European Convention of Human Rights. It therefore followed that they were complicit in that torture and ill-treatment. Mr O’Connor went so far as to submit that faced with the knowledge that a terrorist explosion in London, or one of the major cities in this country, was virtually inevitable unless Amin was detained in Pakistan, the authorities in the UK could not [redaction] have sought the assistance of ISI to find and detain Amin because they knew that any consequent detention would be followed by torture and ill-treatment. He suggested that this principle was illustrated by Saadi v Italy, a decision of the Grand Chamber of the European Court of Human Rights, dated 28^th February 2008, and reinforced by the clear abhorrence of the use of torture repeatedly expressed in this jurisdiction, currently and most recently in A v SSHD (No. 2) [2006] 2 AC 221. For present purposes it is sufficient to notice that A (No. 2) acknowledged a distinction between torture and ill-treatment, and that it addressed the question whether the State was precluded from acting on information to protect the safety of the public if that information represented the fruits of torture. As we have recorded before the jury the Crown never sought to rely on any information obtained by anyone who had interrogated Amin in Pakistan. Mr O’Connor suggested that this was all irrelevant to what he described as the “Faustian” pact between UK and Pakistan security officials. UK officials, he argued, “must know” ISI’s reputation. [redaction]. UK authorities could not have been ignorant of the public sources cited by the defence expert witness, and no one was called to refute or make any observations to contradict or diminish the significance of what he said.

Mr O’Connor then addressed the conditions under which Amin’s detention in Pakistan had continued, accepting for this purpose that he should rely only on the judge’s findings of fact. During his period in custody Amin was deprived of access to a court or lawyer, and subjected to serious threats and abuse. [redaction] All this evidence amply demonstrated that UK authorities were complicit in the ill-treatment to which Amin was subjected, and in the unlawfulness of his detention in Pakistan.

Mr O’Connor then addressed Amin’s arrival at Heathrow on 8^th February. On his analysis, self evidently there must have been discussion and co-operation to co-ordinate the arrangements which culminated in his arrest on arrival by waiting police officers.

The judge provided a meticulous ruling. He narrated Amin’s evidence, and the evidence of [redaction] in some detail. He referred to the evidence of Amin’s uncle and a respected researcher on behalf of Human Rights Watch in Pakistan. He recounted the evidence given by a British police officer, directed to events leading up to Amin’s arrest in the UK and the interview process. He recorded parts of the evidence relating to these issues given by senior police officers. In a substantial part of the judgment he noted the admissions by the prosecution. He summarised the principles to be derived from the authorities. It is not suggested that he misdirected himself.

The submissions addressed to us by Mr O’Connor were deployed in detail before the judge. We shall summarise the judge’s conclusions.

After the judge’s close examination of the evidence, his careful analysis of the essential facts is not open to criticism. However, in view of the importance attached to this submission by Mr O’Connor we remind ourselves that a conviction procured by the unconscionable and abusive exercise of executive power that undermines the rule of law itself may be quashed, however fair the subsequent trial and safe the conviction. If and when such circumstances arise, an abuse of process argument may justifiably be advanced just because the executive may indeed have abused or sought to abuse the judicial process, and the court is possessed of an undoubted jurisdiction to maintain the integrity of its processes and uphold the rule of law. But, and it is an important “but”, this particular aspect of the jurisdiction to stay proceedings requires the judge to balance competing public interests, first, what is sometimes described, wholly inaccurately, as “noble cause” misconduct by the executive, and second, the trial and if appropriate conviction of those charged with serious crimes. In expressing ourselves in this way we are not seeking to extend, but rather to encapsulate the principles to be found in R v Horseferry Road Magistrates’ Court, ex parte Bennett, Mullen, Latif, and Grant [2006] QB60. The responsibility for making the necessary judgment is vested in the trial judge.

Mr O’Connor’s submission is that a significant contribution to every aspect of Amin’s detention in Pakistan, including, [redaction] can be attributed to [redaction] the authorities in the UK [redaction] Notwithstanding Mr O’Connor’s passionate advocacy, we notice that unlike in cases such as ex parte Bennett, Mullen and Latif UK officials did what they could, within the overall constraint which applied to them seeking to work with officials of a sovereign country, to uphold the principles which obtain in this jurisdiction. Their purpose [redaction] was the protection of the safety and right to life of people living in this country, not the obtaining of evidence to establish that he was guilty of any offence or to bring him to trial. At that time the process of the court was not envisaged, let alone engaged. They knew, as the judge found, and was common ground before him, that Amin’s surrender to the authorities in Pakistan resulted from the persuasive efforts of his uncle. In our view it cannot realistically be said that Amin’s uncle made himself complicit in the ill-treatment to which his nephew was subsequently exposed. In any event however this contention founders on the judge’s finding of fact.

Particular areas of concern, such as [redaction] might have justified an argument that the results of the interview process should be excluded, but would not constitute a sufficient basis for a successful abuse of process argument. As it is, no attempt was made to introduce the evidence obtained during the Pakistan interviews as part of the prosecution case.

[redaction]. Thereafter the interview processes with ISI were reduced and ended in October. Amin was then kept in detention in Pakistan. The authorities in Pakistan were responsible for it. Whether it was lawful or unlawful by the law of Pakistan, and it may well have been unlawful, there is no evidence to suggest that UK authorities sought or procured Amin’s continuing detention. He had, when all is said and done, made admissions to complicity in activities which were of direct and immediate concern to the authorities responsible for security in Pakistan: his admissions were far from limited to involvement in this conspiracy. Plainly, Amin’s return to this country was “arranged” in the sense that UK authorities must have known when and where he would arrive. Again, there is no shred of evidence that the UK authorities were complicit in any misconduct which may have attended the process which led to Amin’s flight to this country. Given the extent of his admissions in Pakistan, it would have been surprising if the authorities there would have been prepared to allow him to travel to the UK, knowing of his admitted involvement in terrorist activity, without informing the authorities in the UK that he was coming. If Amin was given a false impression of the consequences of being allowed to travel to the UK that did not take place at the behest of the UK authorities, who by February 2005 had a very serious legitimate interest in interviewing Amin in connection with this conspiracy. They did not procure his return to this country in disregard of proper extradition or similar processes. Indeed on any realistic assessment of the situation, it would have been entirely remiss of the UK authorities if they had failed to make themselves available at Heathrow in order to arrest Amin. They had ample justification for doing so.

After his close examination of the evidence, neither the careful analysis of the essential facts by the trial judge, nor his conclusion, is open to criticism. On the basis of his findings he was entitled to conclude that there were no transgressions by UK officials sufficient to justify an order that the proceedings against Amin should be halted.

We touch briefly on a linked criticism made by Mr O’Connor, namely that even on the judge’s findings of oppression and ill-treatment in Pakistan, which must implicitly, it is submitted, have involved treatment offending against article 3 of the ECHR, he should have stayed the case as an abuse of process. No arguable basis for interfering with the judge’s decision has been demonstrated.

These applicants contended that if any of the grounds narrated this far were successfully advanced by Amin, their convictions would fall on the same or consequential grounds. None of these contentions require further attention.

In his interviews in the UK Amin admitted to communicating through the internet explaining to Khyam the formula for constructing a fertilizer bomb. In evidence Amin denied that he had communicated this formula, but asserted that he had been shown documents by ISI in Pakistan which purported to show that he had been involved in such communications. The documents may or may not have been false, but they provided the source for his subsequent admissions in interview in the UK. Mr O’Connor therefore submitted that disclosure should have been made of any material in the possession of the Crown linked with or relating to the documents which were shown to his client, or the communications themselves. These would, he contended to the jury, and suggested to us, demonstrate or be available to demonstrate that it was not Amin who was responsible for communicating the bomb making formula to Khyam. Without the documents themselves he could not invite the assistance of an expert to demonstrate that they were forgeries. Mr Bennathan submitted that if the forgery suggestion were sustained then that would impinge on his client’s case and undermine his conviction.

Mr O’Connor added that any claim that the PII principles should attach to these documents was emptied of value by publication after conviction of an assertions that MI5 had intercepted an email passing from Khyam to Amin requesting the recipe. If that contention failed, then Mr O’Connor submitted to us, as he had to the judge, that the powers under section 78 of PACE should be used to exclude those parts of Amin’s admissions in interview in the UK which described the internet communications with Khyam.

These submissions are ill-founded. If material were available to the prosecution which tended to support the suggestion that Amin had made false admissions on this critical issue which, if true, demonstrated his full participation in the conspiracy, this material would have been disclosed on the basis that they would or might undermine the Crown’s case and support Amin’s defence. The issue was canvassed with the judge. He supervised the disclosure process. It was re-canvassed with us. We re-examined the disclosure process. No document, using the word in its broadest sense, relating to the admitted internet conversation, which should have been disclosed to the defence is apparent to us. The result of this disclosure arrangement was that the Crown were not in any position to cross-examine Amin in detail about his assertions on this topic when he gave evidence.

On behalf of Garcia Mr Ryder submitted that the telephone conversations between Garcia and the co-defendants during the course of the conspiracy were exculpatory and that this would be demonstrated by an examination of the contents of any telephone intercepts. Thus, he argued, but for the RIPA regime, the test for disclosure would be engaged. He submitted that if the result is that RIPA prevented the disclosure of such exculpatory material, then the prosecution should have been stopped. If the material was destroyed before trial, before the Crown and the judge could assess the material, then the trial was rendered unfair. He therefore asked the court to exercise its own powers to order the Crown to make disclosure to the court in order to allow the court to make an assessment.

The Crown submit that a number of principles can be gleaned from the law and authorities on the RIPA regime, namely:

We note first, that there is no issue between the Crown and the defence with regard to the definition of “exculpatory” material. Second, the regulation of intercept material is governed by RIPA and falls outside the normal disclosure process in criminal trials. Section 17 of RIPA sets out a general prohibition in relation to its deployment. Section 18 (7)-(9), makes it clear that a judge shall not order disclosure to be made to him, unless he is satisfied that, “the exceptional circumstances of the case make disclosure essential in the interests of justice”.

“Exceptional” circumstances are undefined. We agree with Mr Waters that exceptional circumstances cannot arise on the exclusive basis of the self serving assertions of a defendant. If it were otherwise, disclosure would routinely be sought, and allowed. Before a court will make an order for disclosure in the RIPA context, much more is needed. For example the court may find that the Crown’s approach to disclosure was significantly flawed and unsatisfactory. The circumstances which may lead the court to depart from the statutory prohibition must be highly unusual and material. We have already ruled that the disclosure responsibilities were properly fulfilled by both the Crown and the judge. We have seen nothing which leads us to conclude that, exceptionally, we should require the Crown to disclose to us any information under section 18. Given our findings, and acting on the assurances of counsel for the Crown, we reject this ground.

The applicants Akbar, Waheed Mahmood and Khyam adopt this ground for similar and additional reasons. The Crown relies on its original submissions. There are no exceptional circumstances disclosed in the case of the three other applicants to justify the court ordering disclosure, and given our findings, the answer must be the same – the ground is rejected.

On behalf of Akbar Mr Wood QC submitted that the judge wrongly allowed the prosecution to adduce in evidence a recording made by a probe of a conversation of 17 March 2004 between Akbar and Khyam (and also Shujah, one of the two acquitted defendants) in which Akbar recounted a dream he had had and repeatedly described it as realistic. He said that in the dream he had been arrested and tortured by police in the UK, and that, when subsequently questioned by them, he had answered “no comment” to all questions. Mr Wood argued that a dream can never be of any probative value and that the judge should have ruled the evidence inadmissible, alternatively excluded it under s 78 of PACE.

As to admissibility, the flaw in Mr Wood’s argument is that the prosecution were not adducing evidence that Akbar had had a dream (indeed it is difficult to see how anyone but the dreamer could do that). What they sought to and were permitted to adduce was what Akbar said about the dream, and to whom he said it. The fact that he related the dream of his arrest and ill-treatment in the UK to Khyam was capable of supporting the allegation that the two were co-conspirators. Perhaps more significantly, the fact that he was speaking on 17 March 2004 about answering “no comment” to every answer in an imagined interrogation seriously undermined his argument, to which we shall return, that no adverse inference could properly be drawn from his actually doing so, as a young man allegedly dependent on legal advice, when questioned after his arrest.

The judge ruled that the evidence of the “dream” was admissible. He did not expressly add that he rejected the application to exclude it under s 78 of PACE, but no point was taken about this omission by Mr Wood at the time, and in any event the answer was obvious. The adducing of the evidence did not, in our view, have any adverse effect on the fairness of the proceedings.

What weight, if any, was to be attached to the conversation about the dream was for the jury. It would have been open to Mr Wood, when he addressed the jury in a closing speech that lasted several days, to pour scorn on the prosecution and to say that in putting forward this evidence they were clutching at straws. In the event all he said on this topic was: “It is the day of the dream and it is Jawad’s dream. You decide what weight you can give to a dream. No doubt his Lordship will give you a proper direction on how you are to deal with evidence relating to people’s dreams.”

In his summing up the judge dealt with the dream in a similarly low-key way, mentioning it twice in his summary of the evidence, in each case in a few lines. He did not remind the jury of the “no comment” aspect of the dream.

Mr Wood further argued that the judge was obliged to direct the jury as a matter of law as to how to deal with the evidence of the dream. We disagree. The significance, if any, of this evidence was for the jury. In so far as the judge omitted to observe, for example, that the “no comment” element of the dream might be taken by the jury to support adverse inferences from the “no comment interviews”, his omission benefited Akbar.

When arrested and interviewed Akbar declined to answer any questions. He alleged that this was in reliance on legal advice. On being charged he handed over a prepared statement. It contains 17 paragraphs, many of which are simply bare denials.

The statement was evidently drafted with the greatest care. The first two paragraphs, for example, read: “I have no knowledge of the purchase of fertiliser from Bodle Brothers Ltd and to my recollection have never visited these premises. I have no knowledge of the storage of such fertiliser at Access Self Storage, Hanwell, and to the best of my knowledge I have never attended these premises.” In evidence Akbar explained that he did indeed know about the purchase of fertiliser, but the statement was true because he did not know the company from which it had been bought nor the place at which it had been stored.

The Transco disks are not mentioned at all: his explanation for this omission in evidence was that the disks had nothing to do with causing explosions in the UK, and were therefore irrelevant to the enquiries of the British police. In his Defence Case Statement of 29 September 2005 Akbar accepted that his fingerprints were on the Transco disks, but added that “such contact as he had with these items was wholly innocent”. In a Supplementary Case Statement of 16 March 2006, five days before the case was opened to the jury, a detailed explanation was given. These inconsistencies were explored in evidence before the jury.

It was argued that the judge’s directions as to the adverse inferences which could be drawn were defective in four respects: (a) not distinguishing between a failure to answer questions and a failure to mention facts; (b) not identifying the facts said to have been relied upon in evidence and not mentioned previously; (c ) not directing the jury that before they could draw any adverse inference they had to be satisfied that the prosecution case against Akbar was so strong as to call for an answer; (d) not warning the jury against convicting wholly or mainly on the basis of the adverse inferences from silence.

As to (a), it is right that at one point in his directions the judge, having referred to the prepared statement handed in at the conclusion of interviews and the reliance on legal advice, told the jury that “you will consider that when deciding whether his failure to answer questions should lead to an adverse conclusion being drawn against him” [our emphasis]. The italicised words should have read “to mention in interview facts on which he later relied when giving evidence”. But this slip of the tongue was not significant. At other points in the directions the judge used the correct wording, and indeed emphasised it when making a distinction between Waheed and Khyam (who respectively had given no evidence and only limited evidence) and the other defendants save for Amin. “The distinction between them and the other defendants”, he said, “is that the other defendants gave evidence relying upon matters that they had not revealed at the time of the interviews”.

As to (b), the two matters of significance were that Akbar had failed to mention the Transco disks at all, and had failed to mention that he knew about the fertiliser. The judge made specific and accurate reference to these two omissions in a later passage in the summing up and it was not necessary for him to enumerate them repeatedly: indeed if he had done so he would no doubt have been criticised for appearing to encourage the jury to regard the failures as important.

There is more force in Mr Wood’s third and fourth submissions. The judge did not direct the jury, as he should, that before drawing adverse inferences from silence they had to be satisfied that there was a case to answer independent of such inferences, nor that they could not convict wholly or mainly on the basis of such inferences. But, as this Court has said before (R v Boyle and Ford [2006] EWCA Crim 2101), an absolutist approach to this topic is not called for; each case depends on its own circumstances; and the essential question is whether any misdirection or non-direction has caused an injustice and whether the court is satisfied that the jury would have been bound to convict if a proper direction had been given. In that context Mr Wood emphasised that after a long retirement the jury convicted Akbar by a majority of 10 to 2.

In our view the issue of adverse inferences from silence was of marginal importance in Akbar’s case. There was a clear case for him to answer independent of such inferences. In relation to the Transco disks in particular, the damning evidence against him was that they were found on his computer: by comparison the fact that he failed to mention them in his prepared statement was insignificant. We are satisfied that the omissions in the judge’s directions were immaterial to the outcome.

On behalf of Mahmood Michel Massih QC submitted that the trial judge erred in declining to accede to a submission of “no case” at the end of the Crown’s case. There were three main areas of evidence against Mahmood - the evidence of a) Babar, b) the probes and c) the Transco disks. Dealing with Babar’s evidence, Mr Massih submitted that his evidence was highly discredited. With regard to the probe evidence of conversations between the defendants, he relied on O’Brien 59 Cr.App.R.222 @225 and Hedgecock, [2007] EWCA Crim 3486, where Laws LJ, at paragraph 21, said:

“If at the close of the Crown’s case the trial judge concludes that a reasonable jury could not reject all realistic explanations that would be consistent with innocence, then it would be his duty to stop the case”.

Mr Massih contended that when considering a submission of no case, the trial judge has to be able to exclude every possible “innocent” inference, so that the only remaining inference which can properly be drawn is one of guilt. Excerpts from the probe material were prepared for this court. Mr Massih accepted that although the probe evidence can be described as exculpatory in parts, it is also inculpatory. However, he submitted that the Crown cannot rebut or gainsay the exculpatory material, such material being consistent with innocence, and thus, he argued, the submission should have succeeded. With regard to the Transco discs, he suggested that this evidence took the case no further, because the probe evidence itself undermined the suggestion that they were relevant to any bomb plot. Looking at the evidence overall, he submitted, the inferences the Crown wished the jury to draw were nullified by the counter inferences.

The judge found that there was ample evidence to go before the jury. He identified the main areas of evidence as a) the conversations of co-defendants in the absence of the applicant in furtherance of the conspiracy; b) the evidence of Babar as to conversations in Gujar Khan with Mahmood about the latter’s knowledge of utilities in the UK, taken together with Mahmood’s work experience in this country; c) the references to attacks upon those utilities in the overheard conversation; d) the applicant’s interest in explosives training for the brothers; e) his knowledge that Afghanistan was not open to volunteer Jihadists; f) his meeting with Babar regarding the training camp; g) the evidence from which it can be concluded that there was explosives training at Malakand involving ammonium nitrate and aluminium powder; h) the evidence that those attended the training camp had earlier been together at the meeting at Gujar Khan; and i) the applicant’s triumphant statement to Babar that he and others had connections to Abdul Hadi of Al-Qaeda, a fact that had been doubted. These pieces of evidence were independent of conversations between alleged co-conspirators in the applicant’s presence, and in the judge’s view, that independent evidence provided a prima facie case in itself. We agree. The assessment of Babar’s evidence was clearly a matter for the jury. We do not see the passage from Hedgecock adds any gloss to the well established Galbraith test. There plainly was a case for Mahmood to answer: any other conclusion would have usurped the function of the jury. In the result, following the ruling, Mahmood elected not to give evidence.

Mr Dratel is a US attorney. Mr Massih sought to adduce his evidence, set out in a number of statements, on the basis that he was an expert witness. The judge declined to admit the evidence. This ground of appeal criticises that decision.

Seven areas about which Mr Dratel could have given expert evidence were identified:

The evidence of Mr Dratel would, it is suggested, have highlighted the shortcomings that existed in relation to the limited disclosure which was actually made by the FBI concerning Babar. Moreover, as Babar was a key prosecution witness, issues relating to the reliability of his testimony and the background circumstances to his giving evidence could have been evaluated in much sharper context in the light of Mr Dratel’s evidence. If Mr Dratel were able to tell the jury that what had happened to Babar when he was initially detained was unlawful, Babar could have been cross- examined in a different way. If there was a culture of coaching of prosecution witnesses in the USA, this was also relevant to the issue of Babar being coached as a witness. The assertion is made that the notes of the FBI agents would have provided evidence of such coaching, had they been obtained and disclosed.

The judge accepted, as is of course the case, that an expert can give evidence of the law and practice of a foreign jurisdiction. However, he took the view that the evidence sought to be adduced by the applicant was not an explanation of the law, but of experiences in relation to its application in the USA concerning the coaching of witnesses, deficiencies in disclosure, irregularities concerning the issue of the material witness warrant and the likelihood of plea bargaining in the USA. This he found to be inadmissible, even if based on Mr Dratel’s personal experience or related to cases dealt with in the Supreme Court of the USA, because it shed no light on the question whether malpractice had occurred in this case.

We have looked at the various statements of Mr Dratel and have concluded that the judge’s reasoning was sound. The only person in the trial who was in a position to indicate what actually happened during his detention was Babar himself. The evidence from Mr Babar was that he was approached in the street and went to speak with the FBI voluntarily in a hotel room. He was never threatened and no inducements were given and he sought no assurances from the FBI. He spent a number of days talking to FBI officers, was then formally arrested and taken to court. He pleaded guilty to a number of charges relating to involvement in a British plot, namely the conspiracy charged in the applicant’s case. He denied being coached or given any advice regarding his evidence. If necessary, his evidence on these issues, and those to which Mr Dratel’s intended evidence might have related, could have been tested in cross-examination.

In the light of Babar’s evidence, it was impermissible for a witness to be called to say that because coaching is endemic in the USA, Babar must have been coached, despite the witness’ evidence to the contrary. Similarly, second-hand evidence of tactics employed by the FBI generally could not be used to undermine the witness as to what actually happened to him. Babar was very forthcoming about what he stood to gain by giving evidence at the applicant’s trial, namely, a huge reduction in sentence. Importantly, Mr Massih was able and did cross-examine Babar about the fact that he was detained without legal advice; that notes were taken of the interviews and whether he was subjected to FBI tactics, including plea bargaining and coaching. He was also able to comment on the absence of evidence called and lack of disclosure made by the Crown with regard to Babar. We cannot see how the evidence of Mr Dratel could have materially changed Mr Massih’s approach in his cross-examination of Babar. The judge’s ruling was right.

Babar was the Crown’s most important witness. As we have already noted, he was arrested and questioned in the USA, and cooperated with the authorities there with a view to a plea bargain. Had he not done so, he could have received a prison sentence there of up to 70 years, or been extradited to Pakistan to face a capital charge of conspiracy to murder. All this was before the jury as a prominent feature of the case, and Babar readily admitted it in the witness box. Mr Waters referred to the need for caution in assessing Babar’s evidence in his opening speech for the prosecution. Babar was properly and understandably subjected to searching cross-examination attacking his credibility and his motives for testifying as he did. So, long before the summing up began, it must have been obvious to the jury as a matter of common sense that Babar’s evidence had to be treated with caution, and that the defendants’ case was that he was saying and doing whatever he thought the USA authorities wanted him to say and do.

On Khyam’s behalf, Mr Joel Bennathan QC submitted that the judge’s warnings to the jury about Babar were insufficiently robust, and were “defused” by other passages more favourable to Babar, including the citing of independently corroborated but uncontentious evidence as support for the controversial parts of his testimony.

In his summing up the judge noted that each of the defendants about whom Babar gave evidence “accuses him of lying to save his own skin”, and advised them to consider that with the greatest care. He went on to say (Day 168 p 49):

“When you consider the reliability and truthfulness of what he has told you about the defendant, you must approach his evidence with caution. You must do that because he has told you in the clearest possible terms that he hopes to gain from his co-operation with the authorities. If you think that, in order to benefit, he has or may have made up evidence in relation to one or more of these defendants, you must disregard what he said about them. You have to decide if it is safe to act upon his evidence. So you approach his evidence with caution. If however having done that you are sure that he was telling you the truth about one or more of these defendants, then you may use that as evidence in the case against them.”

Later in the summing up (Day 171 p 24) he referred to the need for “special caution” when considering Babar’s evidence. He had been asked to use the phrase “extreme caution” but the passages we have quoted were entirely adequate warnings of the obvious.

As to whether the judge defused the warnings about Babar by unfairly favourable observations the other way, two examples said to illustrate this contention will suffice. The judge said of Babar: (Day 168 p 48):

“He said he hates America for invading the Middle East and the Gulf States. He is hostile to President Bush. He gave a television interview whilst he was in Pakistan for Channel 5 – we saw it – in which he said he would kill every American occupying those lands. He says he stands by that now. His view remains that the real terrorists are the West and that the bombings on 9/11 were right in principle though wrong in timing.

He told you those things at a time when he hoped for a lenient sentence in the USA. You might decide that none of this helps you to assess whether he is telling you the truth. On the other hand, you might find it significant that he is prepared to state those views at a time when he is hoping to impress the American authorities and the American court and receive a benefit for his co-operation. That may or may not be of assistance to you when you are deciding whether he is telling you the truth about the involvement of the defendants he named. All of these matters of course are entirely for your judgment.”

At the end of the section of the directions of law concerning Babar the judge said:

“Babar is of course a witness of great importance. Because of the care that you must take to analyse his evidence, that which I have just given you directions about, I think it will help you to see what other evidence there is that is wholly independent of him. A good deal of his evidence has not been disputed, as I have said, and so the truth of that is not in dispute. In addition to that, where evidence independent of him supports evidence given by him – and some of it does – that may help you to decide if he is telling the truth. Let me for one moment give you just one example where the truth of his evidence might – and I say, because it is for you to decide – be measured by looking at evidence completely independent of him. He told you that Khyam said in Pakistan that he wanted to do “multiple bombings in the UK targeting trains, nightclubs and public houses”. That was Babar’s evidence. Mr Bennathan cross-examining Babar put to him that he was lying about that. Is there any evidence independent of him, with which you might be able to test the truth of that evidence that he gave about what Khyam told him in Pakistan? There is independent evidence for you to consider. What you make of it is entirely for you. It is the probe evidence in which you heard Khyam discussing with Akbar the bombing of the Ministry of Sound nightclub in Central London. Does that have any resonance with Babar’s evidence of what Khyam told him in Pakistan he said about his intentions in the UK of bombing trains, nightclubs and public houses? All of that of course is a matter for you to decide. It is but one example of evidence independent of Babar that could – and I say only could because it is for you to decide if it does support the truth of what Babar has told you. I shall begin by putting the evidence of Babar to one side and reviewing the evidence which is wholly independent of him as it relates to each of these defendants. After that I will review the evidence that he gave. Dealing with the evidence in this way is not an indication that you cannot rely upon Babar. Mr Waters in his submissions to you gave many reasons which he suggests might well indicate that Babar is a truthful witness, despite the defence submissions to the contrary. I deal with the evidence in this way because you must be cautious about Babar, not as an indication to you that you must consider Babar an untruthful and unreliable witness. The prosecution case is that the evidence which is independent of Babar in relation to each of these defendants is in itself compelling but, submit the prosecution, you have the additional and added advantage of evidence form Babar, some of which is supported by evidence independent of him. The defence position in each case is that the evidence independent of Babar is not compelling and that he is not to be relied upon.”

We do not consider that in these sections the judge was invading the jury’s territory or giving any improper indication of his own views. The defence had a central, powerful line of attack on Babar’s credibility and motives. As against that, the prosecution had material, of which the judge gave some examples, which tended to support Babar’s credibility. He could not have made it clearer that the evaluation exercise was for the jury to conduct.

In Amin’s case Mr O’Connor conceded that Babar’s evidence was not as crucial as it was in Khyam’s case, since the main evidence against Amin was his own confessions in London. However it remained significant as evidence supporting the prosecution case that those confessions were true. We consider, however, that the warnings given by the judge about Babar’s evidence were adequate to deal with Amin’s case as well as Khyam’s.

Akbar and Garcia also support the submissions made on behalf of Mr Khyam. It is to be noted however, that the evidence of Babar is of far less significance in the case of these two applicants, as compared with Khyam and Amin. Our observations about the warnings given by the judge apply equally to their cases.

Towards the end of the judge’s summing up Mr Wood submitted a document to him which read:

“It is clear that deliberate thought went into the preparation of the presentation of the case for Jawad Akbar [sic]. The outcome was that his case was not fairly summarised, his evidence was presented in a wholly disjointed fashion, with significant omissions and some errors. Fairness to the accused could only be achieved by restructuring and redrawing the whole summary.”

The judge is to be congratulated on his self-restraint when confronted with this document, and the assertions made in it.

The document listed 25 “errors and omissions”, adding that the list was “by no means exhaustive”. Whether it was exhaustive or not, it included some alleged errors of unbelievable triviality, beginning with “173:31:12 [ie day 173, page 31, line 12] - for Asif read Aqib.” In argument before us Mr Wood concentrated his fire on the judge’s failure to mention the evidence of a probe of 29 March 2004, in which Akbar was heard to say to his friend Waseem Gulzar, “I think the reason Abdul Wahid is saying to us “go” is because none of us are doing anything here, and we won’t be”. In the document submitted to the judge, and in argument before us, this was described as a “fundamental omission” on his part, since this evidence supported Akbar’s case that he intended to leave for Pakistan rather than carrying out any acts of terrorism here.

The 29 March probe evidence was only adduced by Mr Wood in re-examination of his client. This was the subject of criticism by the judge, and in our view rightly so. The reason for not adducing it in chief may have been that it was not, after all, seen as being of such value as was later suggested; or that some of the extracts in the 29 March probe were more equivocal as to Akbar’s intentions. In any event the probe evidence was placed before the jury and a copy of the transcript was inserted into the jury bundle. The judge did not specifically mention it in his summing up, but he did remind the jury in his final summary of Akbar’s case (Day 177 p 76) that according to Akbar “all things were made clear on 12 March at the meeting at The Hollows, and Mr Wood’s point is that the probes show that Akbar went through a period of uncertainty about that which became a certainty after that meeting when he learned that nothing was to be done in the UK”. This is a fair summary of the relevant aspect of Akbar’s case. There is nothing in this complaint, nor in the suggestion that the judge’s summary of Akbar’s case “emasculated” his defence.

This ground criticises the judge’s summing up as unbalanced and unfair to the defence. A schedule of factual errors in the summing up was provided to the judge by Mr Massih, who also drew the judge’s attention to five key points relied on in the case of Mahmood. The judge was invited to remedy the alleged defects. The complaint is that the judge did not deal adequately with the matters raised and thus, even after further submissions had been made, the summing up remained unbalanced.

The Crown produced a schedule in response designed to show that the judge did deal with the issues raised adequately. The Crown also made the point that where a defendant does not give evidence, any summary is bound to appear unbalanced. There were areas of evidence which the Crown would have liked to see included, to which the judge did not refer, but it was accepted that the function of the summing up is to provide a summary.

We have considered both schedules as well as the passages in the transcripts. Conscious that this is an application for leave, we do not reproduce the schedule of matters complained of, nor the Crown’s response. Suffice it to say, that we are quite unpersuaded that it is arguable that the summing up in this applicant’s case was unfairly balanced against the applicant. This ground also fails.

The many and varied criticisms of the summing up are unfounded. The extracts we have given to address Mr Bennathan’s submissions themselves illustrate the care with which the judge approached the unenviable task of summarising the evidence, and the rival contentions for the prosecution and all seven defendants in the course of this mammoth trial. The single error of omission for which the summing up can fairly be criticised was immaterial to the safety of the convictions, and examined in the overall context of the task which he faced, it was trivial. By the time the jury came to reflect on their verdicts they had the advantage of accurate directions of law and a masterly précis of the critical evidence called and the opposing contentions of both sides.

Two distinct submissions were advanced. Both suggested that further investigations into the process by and circumstances in which the jury reached their verdicts were advanced on 28^th April 2008 were required.

It is clear that one member of the jury received the sad news of a very serious illness of her grandmother on her mobile phone. The news reached her at the end of the trial, after the verdicts had been delivered, following a jury retirement which lasted 27 days. It was first suggested that we should consider whether there may have been some communication by or with that juror in the course of the deliberations and, subsequently, whether the juror in question may not have been subject to some unconscious pressure to deliver her verdict because she knew or may have known of the illness and likelihood of the imminent death of her grandmother.

Appropriate inquiries have been made. It is clear that the jurors handed their mobile telephones to the jury bailiff when they arrived at court to resume their deliberations. After the verdicts were returned, the jury bailiff returned the mobile phones to them. The jurors were then permitted a short break in the car park while sentencing arrangements were organised. The jurors were expected to return to court when the arrangements were completed. It was while the juror in question was in the car park that she received the troublesome news about her grandmother, and she immediately reported it to the jury bailiff. The jury bailiff records that “while escorting them back to their room, the juror informed me that she had just received a call informing her that her grandmother was extremely ill and that she had to leave immediately…”

The judge was informed. Naturally he gave the juror permission to leave court, which she did.

There is absolutely nothing to suggest that this juror made or received any communication by mobile phone while she was deliberating on the verdicts. If she had, it is highly improbable that she would have hesitated to ask for permission to leave court until after the jury break in the car park, or have reported to the jury bailiff that she had just received the telephone call, and that she must depart immediately.

As to the possible pressure arising from her grandmother’s illness, and the juror’s knowledge and consequent concern for her it is suggested as a “strong possibility” that the juror had become aware of the seriousness of her grandmother’s condition before she returned to court to resume deliberations on the 27^th day, and that when she did so “with such knowledge” she “failed to report her concerns placing herself, and if communication occurred, her fellow jurors under potentially inappropriate pressures at a crucial stage of their deliberations”. This leads to the suggestion that it is a “very real possibility that the verdict …was influenced by improper considerations and undue pressure arising from some prior knowledge of the impending bereavement”. On these foundations it is suggested that an inquiry should be conducted of the jury by the Criminal Cases Review Commission.

This submission is utterly misplaced. Let us assume for the moment that the juror in question was aware of her grandmother’s illness before she returned to court when the jury deliberations were resumed on 27^th July. We can put the matter very starkly: why on earth should it be assumed or suspected that the juror failed to address the issues, or indeed that she somehow may have put pressure on her fellow jurors to rush to verdicts which they had already been considering for 26 days? The confidence that we repose in the jury system is founded on the belief that jurors act conscientiously in the discharge of their heavy responsibilities. If this juror’s concerns about her grandmother’s condition impinged so heavily on her ability to perform her duties, there is no reason whatever to assume that she would not have drawn attention to her difficulties and invited the court to consider discharging her on the basis that she could not fulfil them. We have not the slightest doubt that on daily basis jurors up and down the country, like many other people going to work, will be subject to all kinds of personal pressures and difficulties, troubles and anxieties, or for that matter happy and blessed with cheering good news. Once at work, or in the jury box, or the jury room, the focus changes, and concentration is applied to the immediate responsibilities. Jurors must be trusted to do their duty, and there is not the slightest basis for suggesting that this particular juror may have been remiss in the performance of hers, or impeded her colleagues from doing their duty. There is no reason, let alone a single “compelling” reason, to adopt the process described in R v Charnley [2007] 2 CAR 468, and invite the Criminal Cases Review Commission to conduct inquiries of the jury.

The second question raised in the context of the jury arises from a post-trial interview carried out with some of the jurors by Channel 4 News. We were invited to consider the full recording of the interview to see whether it would or may reveal that during the course of trial or while the jury was deliberating, the jury, or one or more of its members, were or had become aware of a possible link between the trial with which they were concerned and those who were involved in the terrorist attack in London on 7^th July 2004. The judge had concluded that such evidence should not be admitted.

We looked at the relevant recording. There is nothing in it which tends to the conclusion that the jury or some of its members were or became aware of material which the judge had excluded from their consideration or which was not deployed against these applicants at trial before the verdicts were returned.

Accordingly, neither of the two matters raised for consideration on 28^th April 2008 requires further inquiry either by the court, or by the Criminal Cases Review Commission, at the invitation of the court.

These applications for leave to appeal against conviction are accordingly dismissed.

Passing sentence, the judge said that all the applicants were determined to cause indiscriminate death and injury to unsuspecting innocent members of the community into which they were born. He did not accept that their aim was to inflict economic damage only. Their contemplation of Bluewater and the Ministry of Sound Nightclub as potential targets demonstrated the scale of human suffering and horror they were prepared to inflict. They betrayed the country which gave them every advantage in life. He commented that the applicants insulted the numerous Muslims who enriched our society, but attracted suspicion because of their faith. Such men and women condemned the applicants, who were not heroes, but cruel and ruthless misfits who should be removed from society for its own protection.

In relation to Khyam, the judge observed that he made terrorism the principle focus of his life, supporting his terrorist ambitions by serious fraud. He was regarded as ruthless, devious, artful and dangerous, and the energy behind the conspiracy. He was at the centre of this conspiracy, and he recruited its other members. Khyam does not seek to appeal against his sentence.

The judge regarded Garcia as the personal assistant and close confidant of Khyam, who had received training in explosives in Pakistan and helped to organise the camp attended by some of the conspirators. He was the director of finances and played a full part in the purchase and storage of the ammonium nitrate. The judge observed that he was the front man because the colour of his skin rendered him less open to obvious suspicion.

Akbar was regarded by the judge as a committed terrorist who said he was willing and able to bomb the Ministry of Sound Nightclub. The intercepted conversations showed his enthusiasm for terrorist activity and his frustration that it was not happening as quickly as he would have liked. Akbar arranged for a lease to be taken in the name of his wife to provide a safe meeting place for the conspirators. He introduced his cousin, Nabeel Hussain, subsequently acquitted, to Khyam so that he could be used to pay for the storage. He provided the disks to plot terrorist activities in the UK. He was resourceful, intelligent, disturbingly devious and dangerous.

Mahmood was the oldest of the conspirators, a man who commanded respect in his own Muslim community and therefore exerted authority over the others. His presence in Pakistan and the arrangements he made for training in explosives were important to the conspiracy. He suggested terrorist operations in the UK, and he was prepared to bomb Bluewater. It was significant that he applied for work at Morrison’s contractors for Transco the day after Garcia bought the fertiliser, a reference to a crucial moment in the progress of the conspiracy towards its intended objective.

Amin’s terrorist ambitions were thought by the judge to have begun when he was young. He was born in this country and went to Pakistan where he was deeply involved in the jihadist cause. He was the contact for Khyam and the other conspirators in Pakistan and Khyam’s main agent there. He knew the ingredients required by Khyam to make the bombs to be used, as well as their intended purpose. He supplied the formula, knowing that it was for use in the UK.

It is suggested on behalf of more than one of these applicants that an indeterminate or discretionary life sentence was inappropriate and wrong in principle. Our attention was drawn to the decisions in Martin [1999] 1 Cr. App. R. (S.) 477 and McDonald […], Chapman [2000] 1 CAR 77. These submissions are unrealistic. Each of the applicants was a highly dangerous man willing to participate in the infliction of wholesale death and destruction. But for the intervention of the security services, their common objectives would have been achieved. They represent a continuing danger, and will continue to do so for the indefinite future. In each case a discretionary life sentence was inevitable and rightly imposed.

It is suggested on behalf of each applicant that the recommended minimum term in his case was excessive. Having considered the various submissions, with two relatively small exceptions, we disagree. The judge fixed the total minimum term for Khyam at 20 years. This term was not excessive. Mahmood’s minimum term was fixed at the same level on the basis that he was the oldest, and because of his own standing in his own community, he provided a measure of leadership as well as spurious respectability for the conspirators. It was therefore not wrong in principle for him to be sentenced at the same level as Khyam. In the case of Amin and Akbar, the recommended minimum term was somewhat lower, and fairly reflected their relatively reduced involvement in the conspiracy. That said, both were sufficiently active and enthusiastic participants to justify the minimum term of 17 years, 6 months’ imprisonment. Garcia is more problematic. Having observed for ourselves the conduct of all five applicants during the course of the six day hearing, Garcia appeared quite unable to avoid drawing attention to himself. At the end of a trial of this length, his involvement in the conspiracy may have started to appear greater than it was. The centre of the conspiracy was Khyam: he recruited Garcia. Although Garcia played an important part, his involvement did not approximate to that of Khyam, and Mahmood, not Garcia, enjoyed a leadership role as a respected figurehead. It is with the greatest possible hesitation that we interfere with the judge’s assessment of the relative culpability and involvement of a group of defendants whose lengthy trial had unfolded before him. We are nevertheless satisfied that there was a sufficient distinction between Khyam and Mahmood on the one hand, and Garcia on the other, to require that the minimum term in Garcia’s case should approximate to that imposed in the cases of Amin and Akbar, rather than Khyam and Mahmood. Therefore the sentence on Garcia will be aligned with the sentences imposed on Amin and Akbar.

In Amin’s case it was submitted that the judge was wrong to decline to make any allowance for the period when Amin was detained by ISI. He took the view that Amin’s detention in Pakistan was related to matters which were of direct importance to the authorities in Pakistan. However Amin’s detention [redaction] arose directly from his suspected involvement in this conspiracy. In short the entire period of his pre-conviction detention, including the period of detention in Pakistan, coincided with that of the remaining applicants, and was attributable, at least in part, to the same criminal activity. In our view therefore, without altering the allowance for the period on remand under section 240 of the Criminal Justice Act 2003 (which would not apply to Amin’s detention in Pakistan), we shall reduce the minimum term in his case to 16 years 9 months to make fair allowance for that period in detention. This will bring his effective minimum term to be served into line with those of Akbar and Garcia. The orders under section 240 of the 2003 Act are unaltered.

Leave will be granted to Garcia and Amin to appeal against sentence. The remaining applications in relation to sentence are refused.

At the hearing we confirmed with counsel that if leave to appeal were given to any of the applicants on any basis, the application should be treated as the hearing of the appeal. Garcia and Amin were present throughout the hearing. Accordingly we shall deal immediately with their appeals against sentence, and make orders consequential on our judgment. Garcia’s appeal will be allowed to the limited extent that the life sentence on him will be upheld, but the minimum term to be served before he can be considered for release will now be 17 ½ years’ imprisonment. The life sentence on Amin will also be upheld, but the minimum term to be served before he can be considered for release will now be 16 years 9 months imprisonment.

At the outset of this appeal we expressed concern about the length of the trial, and counsel produced a detailed schedule of the timetable in which the reasons for the delay were identified. It was however pointed out that this case is no longer typical of terrorist trials. When this trial began the full impact of the new Criminal Procedure Rules had not been appreciated. Moreover, since 2006, cases alleging offences contrary to the Terrorism Act 2000, the Anti-Terrorism Crime and Security Act 2001 and the Terrorism Act 2006, and other statutes which identify “terrorism cases” have been dealt with, not only in accordance with the Criminal Procedure Rules, but also with a Protocol for the management of terrorist cases issued on 30 January 2007. The precise details of the protocol are readily accessible, and need no recitation in this judgment. In practical terms, all cases falling within the list, whether sent or committed to the Crown Court, are placed before a nominated judge of the Queen’s Bench Division who normally sits for this purpose at Central Criminal Court. The court has the advantage of extensive video link facilities. This enables the majority of hearings to be dealt with via the link, thus saving the expense and time of the police and prison or security staff. At an early stage, usually while the investigation is still in process, the parties act under judicial supervision, and if necessary, the direction of the same judge throughout, until on the basis of a proper time estimate the appropriate date and venue for trial, and the appropriate level of judge, whether a High Court or Senior Circuit Judge can be decided.

The judge currently in charge of this list is Calvert-Smith J. Within the protocol, and exercising his case management responsibilities, he is able to estimate and, if necessary, test whether solicitors and counsel instructed to deal with the case are in fact able to act for the defendant without the risk of late returns or applications for further time caused by the lack of time for preparation. He may also be asked to rule on matters of law. He sets an appropriate timetable and deadlines for compliance with his orders, so that any possible slippage, or difficulties with the timetable, can be identified and addressed.

Much closer judicial case management, and the exercise of the powers now available under the Criminal Procedure Rules, have produced a significant reduction in the number of pre-trial hearings, as well as the length of most terrorist cases. The parties focus proper attention on case preparation. Each new case is subject to judicial control of the timetable, early fixing of dates for dealing with essential preliminary matters, such as the grant or refusal of bail, or an order of a certificate for Queen’s Counsel. Many matters, which might otherwise have required an oral hearing, are now dealt with administratively or, by consent, electronically. The subsequent trial is conducted in accordance with the now familiar Criminal Procedure Rules, and with the co-operation and assistance of the professions, the administration of justice has improved. Adherence to and if necessary, judicial enforcement of the rules is and remains a high priority, and judges and practitioners who fulfil their own responsibilities within the trial process on the basis that time is a limited resource can anticipate wholehearted support in this court if and when they are criticised for doing so. None of these measures interfere with the due administration of justice, rather they enhance it.