Girma & Ors, R. v (Rev 1)

This is a judgment to which all members of the court have contributed.

The fundamental issue in the appeals against conviction is whether the plea of guilty of a co-defendant, Mohammed Kabashi (“Kabashi”) to count 2 on the indictment was rightly admitted in the trial of the others; if not, whether in any case the safety of the conviction is affected. A similar but secondary issue arises in respect of the admission of convictions in an earlier trial (“the Kingston trial”).

On 11 June 2008 in the Central Criminal Court, after a trial of almost 4 months, the applicant Yeshiemebet Girma (“Yeshi”) was convicted on count 1 of the indictment. That alleged that contrary to section 38B(1)(a) and (2) of the Terrorism Act 2000 she:

“on divers days between 1^st day of April 2005 and the 22^nd day of July 2005, had information which she knew or believed might be of material assistance in preventing the commission of an act of terrorism by…Hussein Osman [“Osman”], and, without reasonable excuse she did not disclose the information…”

Yeshi, her brother Esayas Girma (“Esayas”) and her sister Mulumbet Girma (“Mulu”) were convicted on count 2 of assisting an offender contrary to section 4(1) of the Criminal Law Act 1967. That alleged, as particularised for the jury, that:

“…Osman, having committed an arrestable offence, namely conspiracy to murder, on divers days between 19^th day of July 2005 and 24^th day of July 2005 [they] [and Omer Nagmeldin Almagboul (“Almagboul”) and Shadi Sami Abdelgadir (“Abdelgadir”)] and others, including…Kabashi, knowing or believing that …Osman had committed the said offence or some other arrestable offence, without lawful authority or reasonable excuse, assisted…Osman by:

(i)

collecting Osman from Wandsworth and taking him out of London on the afternoon of 21^st July 2005 [Yeshi and Esayas]

(ii)

providing Osman with a mobile telephone and SIM card on 21^st July 2005 [Yeshi and Esayas]

(iii)

delivering Osman to 8 Southall Avenue, Brighton on 21^st July 2005 [Yeshi and Esayas]

(iv)

removing property from 40 Blair House, London on 21^st July 2005 [Yeshi and Esayas]

(v)

withdrawing cash on the evening of 21^st July 2005 [Yeshi and Esayas]

(vi)

buying medication for Osman’s injury, dressing his injury and washing his clothes on 21^st July 2005 [Mulu]

(vii)

accompanying Osman on the evening of 21^st July 2005 from 8 Southall Avenue, Brighton to 20 The Fairways, Brighton [Esayas and Mulu]

(viii)

providing accommodation for Osman at 20 The Fairways, Brighton on the night of 21^st-22^nd July 2005 [Almagboul and Abdelgadir]

(ix)

facilitating Osman’s use of a Nissan Primera vehicle…on 22^nd July 2005 [Abdelgadir]

(x)

making a false report of the theft of the Nissan Primera on 23 July 2005 [Almagboul, Mulu and Abdelgadir]

(xi)

removing property from the Nissan Primera [Almagboul, Mulu and Abdelgadir]

(xii)

disposing of items of clothing used by Osman [Mulu]

with intent to impede the apprehension or prosecution of the said…Osman.”

Yeshi, Esayas and Mulu were also convicted on counts 3, 4 and 7 respectively of failing to disclose information about an act of terrorism contrary to section 38B(1)(b) and (2) of the Terrorism Act 2000.

Almagboul and Abdelgadir were found not guilty on count 2 and on counts 5 and 8 respectively (of failing to disclose information about acts of terrorism).

Kabashi, in circumstances we shall come to, pleaded guilty to count 2 and count 6 (of failing to disclose information about acts of terrorism).

The trial judge, His Honour Judge Worsley QC, sentenced the first 3 applicants as follows:

Kabashi was sentenced as follows:

Yeshi’s and Esayas’ applications for leave to appeal against conviction and sentence have been referred direct to the Full Court, as has Mulu’s application for an extension of time and leave to appeal against conviction and sentence, and Kabashi’s application for leave to appeal against sentence. We extend time in Mulu’s case. We grant leave to Yeshi, Esayas and Mulu to appeal against conviction. We grant leave in all cases to appeal against sentence.

On 21st July 2005, two weeks after the London bombings, three devices were detonated on Underground trains and a fourth on a No 26 bus. A fifth device was abandoned near Little Wormwood Scrubs where it was discovered two days later. Each device was carried in a rucksack and contained the primary high explosive triacetone triperoxide (TATP), light bulbs, batteries, wires and plastic containers. Although four of the devices were detonated, in each case the main charge, which consisted of hydrogen peroxide and chapatti flour, failed to explode. The four whose bombs detonated were Osman (Shepherd’s Bush), Muktar Ibrahim (No 26 bus), Yassin Omar (Warren Street) and Ramzi Mohammed (Oval). Osman lived at 40 Blair House, not far from Stockwell tube station and Mohammed lived in Delgarno Gardens. After the bombings he fled from London to Brighton. He returned to London on 23rd July. From there he travelled to Paris and on to Rome where he was arrested on 29th July. Omar lived in a flat at 58 Curtis House (said to be the bomb factory). Ibrahim often stayed there with him. Omar was arrested in Birmingham on 27th July. Mohammed and Ibrahim were arrested at 14k Delgarno Gardens on 29th July. Ibrahim, Osman, Omar and Mohammed were convicted of conspiracy to murder. Each was sentenced to life imprisonment with a minimum term of 40 years.

The person responsible for abandoning the device near Little Wormwood Scrubs, Manfo Asiedu, pleaded guilty to an offence of conspiracy to cause explosions. He was sentenced to 33 years imprisonment. Adel Yahya, who had been involved in purchasing the hydrogen peroxide for use in constructing the bombs, pleaded guilty to an offence of possessing information of a kind likely to be useful to a person committing or preparing an act of terrorism. He was sentenced to 6 years 9 months imprisonment.

Due to the number of individuals charged in relation to the events of 21st July 2005 it was impossible to try all the accused before a single jury. On 4th February 2008 at Kingston Crown Court, Abdul Sherif, Siraj Ali, Muhedin Ali, Wahbi Mohammed and Ismil Abdurahman were all convicted of assisting Osman and/or the other bombers and failing to disclose information. They were refused leave to appeal against conviction. They successfully appealed against sentence: see Sherif and others [2008] EWCA Crim. 2653.

Abdul Sherif was Osman’s brother. Osman used his passport when fleeing the United Kingdom on 26^th July 2005. On one count of assisting an offender there was substituted for an original sentence of 5 years imprisonment a sentence of 6 years and 9 months. On one count of failing to disclose information after the event, a 5 year sentence of imprisonment ordered to be served consecutively was reduced to 4 years and ordered to be served concurrently. In all, 10 year sentences of imprisonment were reduced to 6 years 9 months.

Siraj Ali lived at 65 Curtis House. He had prior knowledge of the events of 21st July. After 21^st July he assisted Ibrahim by clearing out his property from Curtis House. He thereafter failed to tell the authorities what he knew about the involvement of Ibrahim and Omar in the attacks. On two counts of failing to disclose information before the attacks, he was sentenced to 5 years imprisonment on each count concurrent. Those sentences were upheld by the Court of Appeal. On two counts of failing to disclose after the event, he was originally sentenced to 5 years imprisonment on each count concurrent, but consecutive to the 5 years imprisonment for the prior knowledge offences. The Court of Appeal reduced those sentences to 4 years imprisonment concurrent, but consecutive to the 5 years. For an offence of assisting an offender, an original sentence of 2 years imprisonment consecutive was ordered to be served concurrently. In all, total sentences of 12 years imprisonment were reduced to 9 years.

Muhedin Ali was an associate and friend of Osman, Yeshi and the Mohammed brothers. On the night before the attacks Yeshi took to him extremist material belonging to Osman. It was the delivery of that material which formed part of count 1 on the indictment against Yeshi. He also became the custodian of Ramzi Mohammed’s suicide note before the attacks took place. After the attacks he offered Osman a safe house in London. On one count of assisting an offender he was originally sentenced to 2 years imprisonment. The Court of Appeal substituted a sentence of 4 years 9 months imprisonment. On two counts of failing to disclose information after the event, he was originally sentenced to 5 years imprisonment on each concurrent but consecutive to the 2 years imprisonment. The Court of Appeal substituted 4 year sentences to be served concurrently. In all 7 year sentences of imprisonment were reduced to 4 years 9 months.

Wahbi Mohammed was the brother of Ramzi Mohammed. On four counts of failing to disclose information about acts of terrorism before the attacks, he was sentenced to 5 years imprisonment on each count concurrent. Those sentences were upheld by the Court of Appeal. On two counts of assisting an offender (in one case Osman, the other Mohammed), he was originally sentenced to 2 years imprisonment and 5 years imprisonment consecutive. The Court of Appeal substituted two consecutive 4 year sentences. On four counts of failing to disclose information after the event he was originally sentenced to 5 years imprisonment concurrent with each other, but consecutive to the previous sentences. The Court of Appeal reduced the sentences to 4 years and ordered them to be served concurrently. In all, 17 year sentences of imprisonment were reduced to 13.

On returning from Brighton on 23^rd July 2005, Osman stayed with Abdurahman until fleeing the country the next day. Abdurahman acted as a runner for Osman. He retrieved a video camera and a passport for him. On 4 counts of failing to disclose information prior to the attacks, original concurrent sentences of 5 years imprisonment were reduced to 4 years by the Court of Appeal. For assisting an offender, a consecutive sentence of 5 years imprisonment was reduced to 4 years imprisonment consecutive. In all a total sentence of 10 years imprisonment was reduced to 8 years.

Yeshi, alleged the Crown, was Osman’s wife. She lived with him and their 3 children at 40 Blair House. They were living together when he was playing his part in planning the events of 21 July. In May 2004, Osman, with their son (with three of the other bombers) attended a ‘training’ camp. This camp, it was said, formed part of the radicalisation of the bombers. Given that her young son attended this camp, it was suggested that Yeshi must have been aware of Osman's radicalisation during that period.

Yeshi’s case was that she and Osman were not close at the material time.

There was cell site and CCTV evidence that from April to July 2005 planning meetings between Osman, Muktar Ibrahim and Yassin Omar took place in the vicinity of 40 Blair House. Evidence recovered during the search of 40 Blair House revealed the extent of Osman's interest in extremist Islamic teaching. From the position of these items (audio tapes featuring Abu Hamza and Sheikh Faisal) within the address it was alleged that Yeshi must have been aware of Osman's developing ideology.

A significant part of the ‘prior knowledge’ count against Yeshi (count 1) came from evidence that on the night before the bombings she had delivered a suitcase containing a large quantity of extremist ideological material, on Osman's behalf, to Muhedin Ali. Although Ali was convicted of assisting Osman and failing to disclose information at the earlier trial at Kingston Crown Court, he was acquitted of the ‘prior knowledge’ allegation which revolved around Yeshi’s delivery of the suitcase, (something the jury was told about). Telephone and CCTV evidence corroborated the allegation that such a delivery had taken place. The material, subsequently recovered during a police search at Ali's home address, bore the fingerprints of Osman, Yeshi and Esayas.

Esayas did not face a ‘prior knowledge’ allegation. There was however evidence that he was a regular visitor to 40 Blair House. He was seen there on 15 July 2005 at 21.10 and 21.27 (CCTV), playing with a child outside. The Crown suggested he maintained a relationship of familial proximity to Osman. Furthermore, as we have stated, in the ideological material delivered by Yeshi to Muhedin Ali's home address on the night before the attacks was a cassette tape box bearing the fingerprint of Esayas.

Although Mulu was a student in Brighton, she too, on the evidence, was a regular visitor to 40 Blair House. Items belonging to her were subsequently recovered from that address during the police search. On the morning of 21 July, at 11.25, approximately an hour before the explosions, Mulu (in Brighton) was in contact with Yeshi (in London).

At sometime shortly after 12.40 Osman boarded a Hammersmith bound train at Ladbroke Grove. It was not long afterwards that he sought to detonate the bomb. Because the bombers intended to kill themselves, there was no plan of escape. Osman had immediately to devise one. Within a very short time indeed the appellants were involved.

At 12.50 Mulu (in Brighton) was in contact with Esayas (in London with Yeshi). The Crown's case was that Mulu had become aware of the events of 21/7 through contact with her relatives in the immediate aftermath of the attacks and before Osman's arrival in Brighton.

Osman escaped from Shepherds Bush Station, via a rear garden in McFarlane Road. At 13.09 he contacted Yeshi from a telephone box on Northpole Road, not far from where the bomb went off. At 13.12 Yeshi called Muhedin Ali (to whom the previous night she had delivered Osman’s fundamentalist literature). At 13.31 Yeshi called Osman’s telephone. She also called the Northpole Road (telephone box) number. That was the first of many such calls. Yeshi was obviously trying to return Osman’s 13.09 call.

Osman then caught a number 220 bus which took him to Wandsworth. He arrived at Mapleton Road, Wandsworth shortly after 14.00. He walked to a telephone box on Garrett Lane. From 14.08 he made two further telephone calls from that telephone box to Yeshi. It was the Crown's case that in the course of these calls arrangements were made for Osman to be collected from Wandsworth by Yeshi and Esayas. By 14.34 CCTV evidence showed that Yeshi and Esayas were driving in a green Astra motor-car in a westerly direction towards the area where Osman was. They were to pick up the injured Osman and take him to Brighton where Mulu and Kabashi lived (at different addresses).

At 14.52 Esayas, using his telephone ‘254’ called ‘919’ (registered to Kabashi). That was the last time the ‘254’ handset was used. Within half an hour Esayas’ ‘254’ SIM card was transferred to Osman’s ‘308’ handset.

By 15.02 the Astra was seen with someone in the middle of back seat. Osman had been collected. They were off to Brighton.

In the course of this car journey, the Crown alleged that Osman acquired the use of telephone ‘009,’ previously used by Yeshi.

At 13.38 telephone ‘919,’ registered to Kabashi, using a cell site consistent with Mulu’s address in Southall Avenue, Brighton, was in contact with Yeshi’s or Esayas’ telephones. Esayas’ telephone was in contact with ‘919’ at 13.40hrs and 14.52hrs. Between 13.38 and 14.56 ‘919’ made or received 10 calls to or from Yeshi and Esayas, using the Brighton cell site. Mulu’s case at trial was that Kabashi was using the telephone. Kabashi’s basis of plea did not accept that. The Crown suggested that the most incriminating of all of the calls was at 15.12hrs when ‘919’ was in direct contact, for 18 seconds, with ‘254’ which by then was on the evidence being used by Osman.

By 16.41 telephone ‘009,’ which had formerly been Yeshi’s, and was being used by Osman, was cell sited in the Brighton area. From 17.03 it was using cell sites serving Southall Avenue (Mulu’s address). It used Brighton cell sites until 23 July. The evidence was that when Osman, Yeshi and Esayas reached Brighton, they went to Mulu’s flat in Southall Avenue. Mulu and Kabashi were there.

Yeshi and Esayas returned to London. By 18.02 Esayas’ telephone ‘180’ was using a Croydon cell site. At 18.06 Yeshi’s telephone ‘304’ was doing the same. The Crown’s case was that Yeshi and Esayas in the Astra and Kabashi in his Passat were returning to London in convoy. The purpose was to remove items from Blair House and withdraw cash for Osman’s later use. They were seen at different times on CCTV. At 19.34 they stopped at Blair House. Yeshi and Esayas went in. At 19.44 Esayas took a black bin liner from Blair House and put it in the boot of Kabashi’s Passat. At 19.46 Esayas placed another plastic bag in the boot of the Passat. Esayas and Kabashi left in the Passat. Yeshi left at the same time in the Astra. At 19.50 the Passat parked at Sainsbury’s supermarket in Wandsworth Road. Yeshi got out of the rear nearside and went to the cash machine. Esayas joined her. The cash was withdrawn at 19.53. Esayas, it was alleged, then returned to Brighton.

At this time Osman was in Brighton. Mulu was with him alone at Southall Avenue. She washed his clothes. She treated his injury. Cell site evidence indicated that Osman’s ‘009’ telephone used Southall Avenue cell sites until 21.39. Mulu’s ‘112’ telephone did the same until 21.47. By 22.57 Mulu’s telephone used a cell site consistent with being at 20 The Fairways, the flat Kabashi shared with the two acquitted defendants. Osman’s ‘009’ telephone used a Fairways cell site at 23.14. Not surprisingly the Crown’s case was that Osman was moved from Mulu’s address to The Fairways.

The acquitted defendants accepted Osman was at their address. Their case was that they did not know what he had done. Kabashi misled them.

There was evidence which suggested that Esayas and Mulu were involved in researching the media and internet to discover if the police knew of Osman’s involvement. It is not necessary in this judgment to go into the detail of that evidence.

We turn to 22 July 2005. At 10.15 Mulu (in the vicinity of Southall Avenue) sent a text to Yeshi. Between 10.52 and 12.49 Yeshi called Mulu nine times. All calls were forwarded to voicemail. At 13.20 Mulu was seen on CCTV buying a newspaper. The headline referred to the four suicide bombers “on the loose.” There were thereafter many calls between Yeshi and Mulu.

When Osman left The Fairways, he had the use of a Nissan motorcar. It was later found in Brighton abandoned and unroadworthy. It was a car which Kabashi had been using. In order to distance themselves from that car the Crown alleged that Mulu and Kabashi, with the two acquitted defendants, falsely claimed it had been stolen. The first call to the police regarding this came from Mulu’s telephone. That call was abandoned. The first recorded call came from someone who identified himself as Links. That was an alias used by Kabashi. The cell site used served Southall Avenue.

We turn to 23 July 2005. On that day Mulu drove Kabashi’s Passat to London. She was seen at a garage appearing to take an interest in a newspaper with the headline “Find them.” In the late afternoon of 23 July 2005 Osman went to London by train. After spending three nights there, and with the assistance from others to which we have referred, he left the country.

Yeshi and Esayas said nothing when arrested and interviewed. Mulu answered questions. She submitted a prepared statement. She said, among other things, that she called her family when she saw the news reports on television. Yeshi rang her and told her she was coming to Brighton. She arrived with Esayas and Osman. Osman had a deep wound in his leg. He said he was in trouble. She was left alone with him. She obtained dressings from a pharmacy. She washed his clothes. She received a telephone call from Osman and said that she did not know what was going on but didn’t want any of it. She said that because Osman said he was in trouble and she did not like the way he was behaving, she threw his jeans and boots out of the car window when with Kabashi.

On 29 July 2005 Mulu was driven round addresses in Brighton with her solicitor to identify addresses of significance for the police. She directed them to where she had thrown Osman’s belongings out of the car window. Among other things, Osman’s boots were recovered.

In broad terms, the appellants agreed they had assisted Osman. They disputed that they knew or believed he was a terrorist and that they had any intention to impede his arrest or prosecution. In short, the essential issue was not what they did, but what they knew or believed. Yeshi said she was estranged from Osman. Esayas said he intended to visit his sister Mulu in Brighton anyway. He assisted Osman in many (although not all) of the ways alleged by the Crown. Mulu said she assisted Osman by dressing his injury, washing his clothes and providing accommodation. She believed he had been in a fight in London. She disposed of his property because she did not want to get into trouble.

As we have said, the acquitted defendants’ cases were that Kabashi deceived them. They had no idea Osman was a terrorist.

On 19 February 2008 Kabashi pleaded guilty to counts 2 and 6. His plea on count 2 was on a limited basis. Although the Crown indicated it did not wholly accept that basis it did not seek a trial and the judge indicated he would sentence on its footing. The basis of plea was:

“…3. [Kabashi]…does not accept he was the person using the 919 phone [registered to him] during the course of 21^st July when it was used to make and receive calls from the Girma family…

…(14) During the course of the evening on 21^st July he accepts that having moved from suspicion to belief he provided accommodation to Osman and therefore assisted him as outlined in Count 2(viii)…

…(18) The Defendant accepts being involved in the making of a false report regarding the Nissan car (see Count 2(x)) and being involved in the removal of property from the Nissan (Count 2(xi)).”

In other words, Kabashi did not accept any allegation in which on the Crown’s case Yeshi or Esayas were involved. He accepted belief from the evening of 21 July, but not knowledge.

The prosecution sought the admission of Kabashi’s pleas, in particular that to count 2, in the trial of the other defendants under section 74(1) of the Police and Criminal Evidence Act 1984 (“PACE”) which provides:

“In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court in the United Kingdom…shall be admissible in evidence for the purpose of proving that that person committed any offence, where evidence of his having done so is admissible, whether or not any other evidence of his having committed that offence is given.”

The prosecution sought to justify the admission of Kabashi’s plea by reference to what it proposed to say to the jury in the following terms:

“Until this time last week it was anticipated that you would be considering not five but six defendants in this trial. That is because the Indictment contains reference to a sixth named individual who assisted Osman in count 2…Kabashi was, in July 2005, the boyfriend of Mulu…He lived when not staying with Mulu, at the Fairways flat which he rented with Almagboul and Abdelgadir…When Osman was delivered to Mulu’s flat in Southall Avenue in Brighton on the afternoon of 21/7…Kabashi was there together with Mulu. From that time onwards, Kabashi played his part in assisting Osman, and did so alongside Yeshi, Esayas and Mulu…as well as Almagboul and Abdelgadir. All six of them were in this together. Why isn’t he in the dock today? Because, on Tuesday 19^th February…Kabashi pleaded guilty to count 2, assisting an offender namely Osman, and guilty to failing to disclose information about Osman. The same offences alleged against these defendants. You are entitled to know about his convictions by his pleas of guilty. We say these convictions are highly relevant because they help you in your task. They help in at least two different ways:

There was of course an immediate problem with what Mr. Hill QC on behalf of the prosecution proposed to say. Kabashi did not accept any act of assistance said to involve either Yeshi or Esayas, as Mr. Wood QC on behalf of the appellants pointed out in submissions to us. The aspects of assistance he accepted only involved Mulu and the two acquitted defendants on the Crown’s case.

Following argument, and having been referred to the relevant authorities to which we shall shortly come, the judge accepted the prosecution’s submissions. Among other things, he rejected a defence submission that if admissible under section 74 of PACE, the “admission of the evidence [of Kabashi’s plea] would have such an adverse effect on the fairness of the proceedings that the court ought not admit it,” under section 78 of PACE. He summarised the submissions made by the defence in this way:

“The submission raised by the defence…is that effectively, by admitting Kabashi’s guilty pleas, it would close off these issues from the jury’s consideration: first, whether immediately after Osman’s device had failed to detonate in London, when he was in Brighton on the run, he confided in anyone as to his involvement in the 21/7 bombings; secondly, whether Osman directly or through others, informed Mulu and Esayas…of his involvement in the 21/7 attacks; and, thirdly, whether, when Kabashi was in telephone contact with remaining defendants and in their company, he was aware of Osman’s involvement in the events of 21/7.

I disagree with the submissions…that Kabashi’s pleas close off those fundamental issues…

I have considered the section 78 submissions…and have come very clearly to the conclusion that it would not be right for me to exercise my discretion to exclude this evidence.”

He also said this:

“…in my judgment the jury will not conclude in this case, because of the pleas of guilty of Kabashi, that any of these five defendants must expressly or by necessary inference be guilty of the charges which they face and the jury will get a careful direction from me…that they will not speculate as to the reasons why Kabashi had knowledge of the activities of Osman, nor again will the jury speculate as to any inference that they should draw from Kabashi’s pleas in relation to these particular defendants.”

The judge accepted that the case could be opened in the way foreshadowed by Mr. Hill. Although counsel for the defence submitted that difficulties would arise because of the limited basis of Kabashi’s plea, the judge did not refer to this aspect in his ruling.

On 7 April 2008 the prosecution case was drawing to a close. The prosecution had prepared a draft admission to deal with Kabashi’s plea. It was in the following terms:

“On 19^th February 2008…Kabashi pleaded guilty to the following offences:

[Count 2] Assisting an offender, namely…Osman, between 19 July 2005 and 24 July 2005, contrary to Section 4(1) of the Criminal Law Act 1967.

[Count 6] Possessing information about acts of terrorism between 20 July 2005 and 1^st August 2005, contrary to Section 38B(1)(b) and (2) of the Terrorism Act 2000.”

That proposed form of words lead to a disagreement between defence counsel. Those representing Yeshi and Essayan wanted the basis of Kabashi’s plea to count 2 before the jury. Not surprisingly, they wanted the jury to know that nothing he admitted involved their clients. Those representing Mulu, for the opposite reasons, did not want the basis of plea in. In the course of argument, the judge said this:

“My concern is the jury speculating unfairly against any defendant in respect of the basis of plea of Kabashi. That’s what concerns me. I’ve seen force in Mr. Ferguson’s argument [on behalf of Yeshi], not anticipating there was going to be such robust disagreement with him…

I’m against Mr. Ferguson’s submission because…the basis of plea here is not finely-tuned in that, somewhat exceptionally, Kabashi pleaded guilty on a basis which is not wholly accepted by the Crown. Therefore I think it would involve satellite litigation and potential irrelevant material going before the jury if we had to go down that path. So with the agreement of most defence counsel and the Crown, the [draft admission]…will go before the jury…”

In short therefore, that meant that as far as the jury was concerned, first, that it had no idea that Kabashi was denying every allegation involving the first two appellants, second, that he never accepted knowledge but only belief and third, it did not know when his belief arose.

There were written legal directions for the jury. The direction regarding Kabashi’s plea was in the following terms:

“You have heard that Kabashi- who has figured largely in this trial- has pleaded guilty to the charges against him. It is right you should know why it is that you are not trying him. His pleas of guilty simply mean that he was helping Osman in the belief that Osman was terrorist. The guilt of Kabashi does not automatically lead to a conclusion of the guilt of any of those in your charge nor does it demonstrate the state of mind of the others at Fairways [Mulu, Almagboul or Abdelgadir].

Thus Kabashi’s guilt has no bearing on the guilt or innocence of these defendants. Almagboul and Abdelgadir for example, have each told you that they were deceived by Kabashi and that unlike Kabashi, they had no idea that Osman was a terrorist.”

In that direction, the judge indicated that the plea meant no more than belief by Kabashi.

In Smith [2007] EWCA Crim 2105, this court considered the admissibility of a co-defendant’s plea of guilty. That case involved the admissions of pleas of guilty to robbery and the production of a firearm with intent to commit robbery, in the case of a co-accused who was alleged jointly to be involved. In giving the judgment of the court of Hughes LJ said this:

"16…[previous authority] indicates that section 74 should be sparingly applied. The reason is because the evidence that a now absent co accused has pleaded guilty may carry in the minds of the jury enormous weight, but it is nevertheless evidence which cannot properly be tested in the trial of the remaining defendant. That is particularly so where the issue is such that the absent co defendant who has pleaded guilty could not, or scarcely could, be guilty of the offence unless the present defendant were also. In both these situations the court needs to consider with considerable care whether the evidence of the conviction would have a disproportionate and unfair effect upon the trial. With those cases can be contrasted the kind of case in which there is little or no issue that the offence was committed, and the real live issue is whether the present defendant was party to it or not. In those circumstances, commonly, the pleas of guilty of other co-defendants can properly be admitted to reinforce the evidence that the offence did occur, leaving the jury independently to consider whether the guilt of the present defendant is additionally proved.

"17.

We accept…that this line of cases…was decided before the passing of the Criminal Justice Act 2003. We agree that that new Act does proceed…upon the basis that in some respects the ambit of evidence with which a jury can be trusted is wider than the law formally allowed. That thinking is, we do not doubt, there to be discerned in the bad character provisions of the Criminal Justice Act 2003 and also in the relaxation of the rule against hearsay. It does not, however, follow that the approach of the line of cases to which we have been referred is simply out of date. It remains extremely relevant what the issue is in the case before the trial court. It remains of considerable importance to examine whether the case is one in which the admission of the plea of guilty of a now absent co defendant would have an unfair effect upon the instant trial by closing off much, or in some cases all, of the issues which the jury is trying

18.

It remains a proper approach, we are satisfied, that if there is no real question but that the offence was committed by someone and the real issue is whether the present defendant is party to it or not, evidence of pleas of guilty is likely to be perfectly fair, though of course each case depends upon its own facts. However, it also remains true that such evidence may well be unfair if the issues are such that the evidence closes off the issues that the jury has to try...

22…The judge appeared to advert to the advantage to the jury of knowing what the co defendant's position was. That, we anticipate, is perhaps a reference to the difficulties which can sometimes arise if juries worry about why somebody who is an obvious defendant is not there to be tried by them. It is an argument sometimes referred to as the desirability of demystifying the position for the jury. The demystification argument is, as it seems to us, always a dangerous one. It did not, however, arise in this case…

28.

We observe that the trial judge's job was made more difficult by his being asked to consider the admission of these pleas of guilty before the case was even opened. We understand, of course, that it is often convenient for those conducting a trial to know at the earliest possible opportunity what evidence is going to be admitted and what is not. Sometimes we agree such decisions can properly be made in advance of the opening. However, particularly in a case of evidence of this kind where so much depends upon what the issue turns out to be for the jury, we venture the general thought that it will very often be helpful to wait at least until the principal lay evidence has been given and cross-examined and the issues have more clearly emerged. Had that happened in this case, it may be that the judge would not have fallen into the error which we have had to hold that he did. "

In Kempster (1990) 90 Cr App R 14, Staughton LJ, in giving the judgment of the court, said this (at 22):

"On the more general question whether, if objection had been taken under section 78, the evidence should have been excluded, we have paid particular attention to the observation in Curry [(unreported, April 28, 1998, CA)], "where the evidence expressly or by necessary inference imports the complicity of the person on trial it should not be used". The effect of admitting a conviction as evidence of the complicity of the defendant is that the prosecution will not have to call the person convicted as a witness, to give evidence on oath...”

We start with two general observations.

Section 74 of PACE merely sets out the mechanism by which a conviction may be adduced in any proceedings. As the section provides, it may only be adduced if it is admissible. As was said in paragraph 17 of Smith,it is only admissible if the fact that the person in question committed the offence is relevant to an issue in the proceedings. If it is not, it is inadmissible. No question then arises as to the court’s discretion under section 78. If it is admissible, then considerations under section 78 may arise.

In the context of an allegation such as that in count 2, where specific numbered allegations are specified, a jury cannot infer from a defendant’s plea of guilty more than he admits, as Mr. Hill in argument accepted. Kabashi only admitted allegations vii, x and xii. It would not be open to the jury to regard his plea as encompassing anything more than those allegations. What view the prosecution may or may not have taken of such limited admissions is irrelevant. No question of satellite litigation can arise.

Having made those observations we now set out why in our view Kabashi’s plea to count 2, should not have been admitted.

First, it was irrelevant. The issue in the trial was not what the defendants did, but their states of mind. Kabashi’s plea was irrelevant to that issue. Mr. Hill accepts that. The judge so directed the jury. As irrelevant evidence it should not have been admitted. We cannot accept Mr. Hill’s submission that the plea was relevant to an issue as to whether the appellants’ activities in London and Brighton could amount to assistance for the purpose of section 4 of the Criminal Law Act 1967. There was no doubt that they could. Whether they did depended upon the appellants’ states of mind, something about which the plea could not help.

Second, Kabashi never admitted any offence involving the first two appellants. His plea was on any view irrelevant to them. The manner in which it was admitted never made that clear.

Third, although not a necessary part of our decision, we do think, as Mr. Wood submitted, that this aspect was dealt with prematurely, something referred to in paragraph 28 of Smith. Once the issues were clearer the judge would have been better able to assess relevance. It is not inconceivable, as Mr. Hill pointed out, that Mulu as part of her defence would want to rely on Kabashi’s plea to count 2. She sought to use it as part of her defence. She claimed, supported by the plea, that it was Kabashi and not her who was using the telephone ‘919’ (see paragraph 32). Moreover, the acquitted defendants made use of the plea. Their case was that Kabashi misled them.

In short, we have concluded that Kabashi’s plea of guilty to count 2 should not have been admitted. It is not necessary to say anything in detail about the further submissions Mr. Wood made by reference to what was said in paragraphs 16 and 17 of Smith. Suffice to say that for reasons which will become apparent, we do not accept that the admission of the plea had a disproportionate and unfair effect on the trial so as to render the verdicts unsafe.

Mr. Wood submitted that once it is accepted the plea was wrongly admitted, the appeals are bound to succeed. The convictions are unsafe. His argument had a number of strands.

Although the jury may in the final analysis have been told by the judge that the intent of the appellants could not be inferred from the guilt of Kabashi, what was said was not clear enough and could not in any event prevent them taking the prohibited approach. It was likely the jury convicted by a clear route. They would have used as their cornerstone (or weathervane) Kabashi’s admitted guilt. From that rock, as Mr. Wood described it, the jury would have gone back in time. They would have said to themselves that Kabashi could only have known if one of the appellants (particularly Mulu) told him.

In a meticulous analysis of Mr. Hill’s opening and closing submissions to the jury, and questions asked by him during the trial, Mr. Wood has identified a number of occasions when Mr. Hill fell into that prohibited approach. On occasion too, Mr. Hill suggested that given that Kabashi had knowledge, so too must the defendant being cross-examined. He did not either indicate the limited ambit of what Kabashi had accepted.

Mr. Wood submitted that the admission of the convictions of Kabashi had a real impact upon the fairness of the Applicants’ trial. He suggested it was no coincidence that those defendants who could put themselves further from Osman than Kabashi were acquitted, and those who could not were convicted. The convictions caused the focus of the trial to unfairly bear upon him, something the Crown then sought to exploit, which the defence could not do. In the circumstances the convictions of each applicant were unsafe. The trial was unfair.

It is necessary to approach this aspect with some common sense.

First, we have no doubt that the jury would have approached this case chronologically and not in the way suggested by Mr. Wood. They were very helpfully provided by the judge with a document entitled ‘steps to verdict.’ It was chronological. It started with count 1 (described in terms of ‘failure to disclose prior knowledge’). The jury was only invited to consider count 2 after it had decided count 1.

The jury convicted Yeshi on count 1. By the time it considered count 2, it had decided she had prior knowledge. It is inconceivable therefore that she did not have knowledge in respect of count 2 (and the remaining count). The plea of Kabashi was irrelevant to that and to the case against her.

Second, the chronological summary of the evidence we have set out above, amounts, as it seems to us, to powerful evidence implicating not only Yeshi (who knew in advance anyway) but also her brother and her sister. We shall not repeat it. What it comes to is this. Yeshi and Esayas were involved from within a very short time of Osman’s failed bombing. They helped him escape to Brighton. They helped him by allowing him to use their telephones. They returned to London further to help him. Yeshi and Mulu spoke on the telephone within a very short time of the failed bombing. It was to Mulu’s home that Osman, who was injured, was taken. She helped there in the ways she admitted. She threw items of his away. She helped regarding the Nissan motorcar. This is clear independent evidence which has nothing to do with Kabashi’s plea.

Third, the jury was well able to distinguish between the positions of each defendant. Guilt was not merely inferred from association with Kabashi. The acquitted defendants lived with Kabashi. The jury plainly considered the state of mind of each defendant with great care.

Fourth, in the final analysis the judge did correctly direct the jury that Kabashi’s plea could not be used as evidence of the intention of the appellants.

Fifth, we do not accept that the jury would have concluded from Kabashi’s plea that, in particular, Mulu told him. Osman might have. He might not have been told. The admission of the plea did not specify whether it was knowledge or belief. The judge in his direction to the jury only referred to belief.

Sixth, Mulu (as did the acquitted defendants) used Kabashi’s plea as part of her defence. She told the jury that she was the victim of an abusive relationship with Kabashi. She sought to exculpate herself by blaming him (like the acquitted defendants). It was part of her case that Kabashi was using his telephone when highly incriminating calls were made. She suggested it was Kabashi’s idea to dispose of Osman’s clothing. That does not suggest she was prejudiced by the admission of Kabashi’s plea.

Seventh, it does not seem to us, meticulous as Mr. Wood’s analysis referred to above was, that the safety of the convictions can sensibly be said to be affected by a particular phrase or sentence used by Mr. Hill in the course of a long trial during a speech or cross-examination.

We have concluded the admission of Kabashi’s plea did not in the circumstances affect the safety of these convictions.

We can take this aspect quite shortly. As Mr. Wood frankly indicated, it is not at the forefront of his submissions.

On 26 February 2008 Mr. Hill submitted that the convictions of the Kingston defendants should be admitted. It was part of the picture and explanatory evidence under section 102 of the Criminal Justice Act 2003. None of the present appellants opposed the admission of those convictions. No doubt they did not because they did not think their cases would be prejudicially affected. Indeed, as part of her defence to count 1 Yeshi relied on the acquittal of Muhedin Ali.

The judge ruled the evidence admissible. He said it was unrealistic to exclude it. It enabled the jury to have a complete picture. It was part of the narrative. He appears to have admitted it under section 74. He said he would give a careful direction to the jury that they could not use the convictions to bolster the present case. In the event, he said nothing about them. No-one invited him to do so.

As it seems to us, this is wholly peripheral. It may be (and it is unnecessary to decide) that absent agreement by the defendants, this was irrelevant evidence which should not have been admitted. However, its admission could not conceivably have prejudiced these appellants. It could not conceivably affect the safety of the convictions. We need say no more about it.

The appeals against conviction are therefore dismissed.

We turn to the appeals against sentence. We have very much in mind the matters of principle set out in paragraph 45 of Sherif. They apply equally to the present case. We set the relevant passages out in full:

Before turning to consider the position of the individual appellants, we should point out that, at the time of sentencing, the judge did not have the benefit of the guidance given in the case of Sherif and no criticism attaches to him in passing sentences which can now be seen not entirely to comply with that guidance.

We consider first the position of Yeshi on count 1. It is now said on her behalf by Mr. Wood that the evidence does not establish that she became aware of his intention until very shortly before the bombing and possibly not even until the day before. That may well be right; however, she did know of Osman’s intentions before he set out. She had it in her power to prevent the risk of slaughter and mayhem by telephoning the police and she chose not to do so. As was said in Sherif, in the passage we have already quoted ‘it will be the seriousness of the terrorist activity about which a defendant has failed to give information which will determine the level of criminality, rather that the extent of the information which could be provided which will affect the sentence’. Here the bombing could not be more grave, and the information which she had was of the first importance. We have no doubt that the judge was justified, indeed he was required, to pass the maximum sentence of five years on that count.

We move on to counts 2 and 3 which charged her respectively with assisting Osman and with failing to disclose information to the authorities which might have been of material assistance in securing his apprehension, prosecution or conviction, after the bombing. It is quite clear that Osman rang Yeshi within a very short time of the unsuccessful detonation of the bomb and he did so as soon as he thought that he had put sufficient safe distance between him and the scene of the bombing. It is highly significant that he turned immediately to her and that she immediately responded. Thereafter she did everything that she could to coordinate the steps necessary to secure his rescue and escape. She recruited Esayas. She arranged for Mulu to provide accommodation for some time. She drove to Wandsworth to pick Osman up. She took him to Brighton. She arranged for Mulu to tend his wounds and to find somewhere or him to lie low. Thereafter, she returned to London to remove incriminating material from Blair House.

We conclude that she did everything that she possibly could to assist him and to frustrate the efforts of the police to capture him. We have no doubt, therefore, that in principle the maximum sentence is justified in respect of both these offences: that is to say seven years on count 2 for assisting an offender and five years on count 3, for failing to give information after the bombing. However, we do not think that the charge of failing to disclose information (as charged on count 3) adds anything to the charge of assisting an offender (as charged on count 2) and consequently for the reasons set out in Sherif, we think that these sentences should run currently with each other. However the sentences on counts 2 and 3 should run consecutively to the five years on count 1, since her participation after the bombing is over and above the separate criminality charged in respect of her participation before the bombing.

We have considered whether to give any weight to her personal mitigation, but there is no real evidence to suggest that she was trapped in an abusive relationship with Osman or was in any real sense subservient to him and merely doing his bidding, being powerless to do otherwise; on the contrary, she was using considerable personal initiative and resource. We are of course aware that a long sentence of imprisonment upon Yeshi may bear hard upon her children but that is not an infrequent consequence of the commission of serious criminal offences. Different considerations may have applied if she had given some information to the police, particularly before her arrest, or if she had pleaded guilty but she has showed not the slightest regret or remorse for what happened or for the part she played; in these particular circumstances, for offences of this gravity, there is really no place for personal mitigation.

We have noted the progress which she, and indeed the other appellants, are said to have made in prison, but it is not so exceptional as to justify any reduction in the sentence otherwise appropriate.

There are a number of other points which we must consider. It is suggested that some reduction should be made because of the delay in the trial process; it is said that this was no fault of the appellant. The fact is that the investigation of these complex offences takes a very long time and before a trial can properly take place further work must be done both by the prosecution and the defence. Furthermore, the principal offenders had to be tried first; that trial was followed by the trial of Sherif and others; the trial of the appellant and the others could only take place after the first two trials had been concluded. This delay could have been entirely avoided if the appellant had pleaded guilty. In our judgment, the delay was the consequence of her plea. We do not see this as a mitigating factor.

She is of course entitled to credit for the time which she spent in custody but the point is taken that she should have some credit for the time which she spent on bail. After her release from custody in September 2006, until her conviction in June 2008, she was on bail subject to an overnight curfew between six o'clock in the evening and six o'clock in the morning, monitored by an electronic tag. For the reasons set out in Sherif, we think that a small deduction should be made on account of this fact. We propose to make a discount of three months.

The result is that we quash the sentence of five years on count 2 for assisting an offender and substitute a sentence of six years and nine months (being the maximum of seven years less three months credit for the time which she spent on bail, subject to conditions). We uphold the sentence of five years on count 3; both those sentences will currently with each other but they will be consecutive to the five years on count 1. Therefore, the overall sentence on the Yeshi will be 11 years and 9 months rather than 15 years. The total time which she spent in custody on remand will count towards her sentence as before.

We turn to Esayas. He was only aged 20 at the time. No doubt he found it hard to resist Yeshi's call for help but thereafter he did all that was asked of him. He immediately went to Yeshi. He was with her when they met Osman; together they took him to Brighton and he came back with her to London to clear out Blair House. He played an important part in the Osman’s escape but his role was not so prominent as Yeshi's. We think that he should receive a sentence of five years for assisting an offender. We uphold the sentence of five years of failing to provide information which may have led to Osman’s apprehension. However those sentences will run concurrently in accordance with the principles laid down in Sherif.

We note that he also was on bail subject to conditions for some considerable time until trial but we have taken this into account in fixing the sentence of five years and no further reduction is called for. The result is that his sentence will be reduced from 10 years to 5 years. As before, he will receive full credit for the time he spent in custody before his release on bail.

For sake of completeness we make clear that we have read that the psychiatric report on Esayas but we do not consider that he has any mental condition, still less mental illness, which calls for any further reduction of sentence.

We turn to Mulu. We note that as part of her active cooperation she was engaged in a telephone call made directly from Osman to her within a few hours of the bombing; plainly he believed that he could trust her implicitly. Thereafter she recruited Kabashi; she treated Osman’s wounds, having bought the ointments to do so; she arranged a safe house for him to stay in Brighton, she acquiesced in Osman acquiring the Nissan car and thereafter she gave the police a false story about the car to put them off the scent. In our judgement she played an active and prominent part in permitting Osman to escape and the sentences of five years passed by the judge were entirely justified. However, for the reasons which we have already given, the charge of failing to provide information adds nothing the charge of assisting an offender and those sentences should be made to run concurrently and not consecutively with the result that she will serve five years rather than 10 years. The total time which she spent in custody on remand will count towards her sentence as before.

We turn to Kabashi. The first point to be made is that we must be faithful to the basis of plea, by which he accepted that he had provided accommodation for Osman at the Fairways on the night of the 21^st/22^nd July, that he had facilitated Osman’s use of the Nissan motor car and made a false report of its theft and removed property from the car after it had been abandoned by Osman. His active participation is therefore considerably less than the others.

We reject entirely the argument that the judge was in any way tied by the Goodyear indication which he gave many months before the trial was listed; such indication must remain operative until the defendant has had a reasonable opportunity of considering it but thereafter the indication lapses for all purposes and cannot be used as a springboard to suggest that any other sentence is excessive or wrong in principle.

However, we think that there is considerable force in the argument that he should have received a greater discount on account of his plea than he apparently did. In a multi-handed trial, which is likely to last many months, which will be conducted at immense public expense, particular credit must be given to those who break ranks and plead guilty, particularly in the context of allegations such as the present. Of course, greater credit will be given, the earlier that the plea is entered but even with a plea entered only 10 days before the trial very considerable savings are made. In our view he should have received more than a 10% discount; something in the region of 20% would have been more appropriate. We think that the proper sentence on each of the counts which he faced, namely 2 and 6, would have been four years imprisonment concurrent, rather than the total of nine years imposed by the judge. We have already taken into account the time which he spent on bail subject to conditions. He also will receive credit for the full time which he spent on remand in custody before sentence was passed.

To the extent which we have indicated the appeals against sentence are allowed.