Ahmed & Anor v R

Rangzieb Ahmed’s defence at trial was that he was indeed a terrorist, but not for Al Qaeda. His terrorist interest, it was said, was as a member of an extreme Kashmiri organisation, known as Harakat-ul-Mujahideen (“HuM”). If that possibility were not excluded to the satisfaction of the jury, on the criminal standard of proof, it would mean that he was not guilty of two of the three charges of which he was convicted. Although that was the case advanced on his behalf, he declined to support it by his own evidence.

Habib Ahmed’s defence at trial, which he did support by giving evidence, was that although he had told people that he was a member of Al Qaeda, in fact he was not. He had been claiming that he was in order to try to induce media organisations, such as television or newspaper companies, to pay money for colourful “revelations”. Unless that was excluded to the satisfaction of the jury, on the criminal standard of proof, it would mean that he was not guilty of at least one of the charges of which he was convicted.

At trial, Rangzieb Ahmed applied to the judge to stop the prosecution. He contended that it would be an abuse of the process of the court to try him, whether he was guilty or not. The reason why that was said was because some time after the offences charged were alleged to have been committed he had been arrested in Pakistan and held in custody for just over a year. During that time, it was his case that he had been tortured by the Pakistani authorities (and/or on the authority, he asserted, of the USA). Founding upon that allegation, it is said on his behalf that the UK authorities had sufficient connection with that detention to amount to “complicity” in torture and that if so, no prosecution of him could properly be allowed to continue without affronting the fundamental principle of international law which outlaws torture.

The judge heard evidence about what had happened and did not believe important parts of what Rangzieb said. But in any event, he held, putting it in the briefest terms, that the test of whether a prosecution should or should not be stayed was whether any torture or ill treatment, if there had been any, impacted upon the trial. If it did, then that would provide a reason for staying the trial. If it did not, then whatever may be the legitimate debate about the rights and wrongs of what had or had not been done, it had nothing to do with the trial and provided no reason for not deciding according to the ordinary rules of evidence whether Rangzieb was guilty of the terrorism charged, or was not. The judge held that whatever may have happened in Pakistan, it formed no part of the evidence at the trial and had had no impact upon it. Accordingly, there existed no reason for his not being tried according to English law in order to discover whether or not he was proved to have committed any offence against our law. The principal question in this appeal is whether the judge applied the right test in refusing to stay the prosecution as an abuse of process of the court.

Each defendant also advances other grounds of appeal. Both defendants contend:

Outline history

Both defendants are British citizens born in Lancashire. Rangzieb spent much of his youth in Pakistan, having been taken there by his father. As an adult he was, from 1994 to 2001, a prisoner of the Indian authorities after arrest in Kashmir. He appears to have spent substantial parts of 2003-2004 in Pakistan, but at other times was in the UK, where his mother and siblings live. Habib is three years younger. He and his wife, living in Lancashire, were adherents of an extreme Islamist organisation based in the UK, called ‘Al-Muhajiroun’. He made a number of trips to Pakistan. In March 2002, using the false name ‘Abdullah’ and photographed with a identity-disguising mask, he gave an interview to The Sunday Times asserting that he was an Al-Qaeda fighter just back from Afghanistan and giving details of what he had done.

It is known that on 26 May 2005 the two defendants flew out together on the same flight to Pakistan. They had, however, made their bookings separately, Habib in Manchester and Rangzieb in London. Habib returned in July. Rangzieb’s movements thereafter are unclear. However, six months later in December 2005 they met, clearly by arrangement, in Dubai. Habib flew there from Manchester. Rangzieb arrived on a flight from China, in the company as far as Sharjah of one Mohammed Zillar Rahman (“MZR”), also alleged to be a terrorist. The two defendants shared a hotel room in Dubai from 11^th to 15^th December. MZR appears to have flown on to South Africa; at all events a coded telephone call from that country was received, Rangzieb was initially contemplating going there himself, and within a few days MZR flew into London from Johannesburg. Whilst the two defendants were in the hotel in Dubai some of their conversations were secretly recorded by a listening device and the content was later made available by the Dubai authorities to the Manchester police.

The product of the Dubai listening device was a large part of the Crown case against both men. On the face of it, it was such as entitled the jury to conclude that they were both members of Al-Qaeda, Rangzieb senior to Habib. Habib had brought a telephone SIM card and some outdoor clothing for Rangzieb, apparently to his order. Rangzieb showed his expectations of further help from Habib, in relation to finding accommodation in the UK if he should return there, to providing a ticket back to Pakistan and to managing the media in the interests of Al Qaeda. Importantly, he also asked Habib to take back to the UK with him some diaries. The conversation makes it clear that the information in the diaries was written in invisible ink, and Habib was warned not to allow his little daughter to scribble on the apparently blank pages. Initially Rangzieb was not contemplating an immediate return to the UK, but rather a possible flight to South Africa, depending on contact from someone already there, who appears to have been MZR. However, over the course of the few days the two defendants were in Dubai, their plans changed, perhaps because MZR had not stayed in South Africa, and Rangzieb determined to return to the UK, albeit separately from Habib, and still with Habib carrying the diaries. The recorded conversations of the defendants included discussion of how hard each had worked for the cause, whether Habib might in future move to service abroad, and how far marriage and family were compatible with doing so. They also spoke of training camps, a summons from “the big ones”, fundraising, martial arts techniques, anti-surveillance procedures, the route which Rangzieb could best take in order to avoid arrest on his return, and of Habib’s role to ‘step up the pressure on the media’ if that unfortunate event should occur.

Habib returned first to the UK. As he passed through Schipol airport in Amsterdam his luggage was searched and the diaries he was carrying were photographed but left with him. There were then three books. Two were seized eight months later when Habib was arrested, but the third had vanished. The contents of the diaries, both those recovered and that lost but photographed, formed another principal plank of the Crown case. In invisible ink were found contact numbers for persons with terrorist connections, and Email addresses and access passwords suitable for use for covert messaging via a ‘dead letter drop’ method which avoided interceptable transmission to an identifiable recipient. A page from one book (“GS/167”) contained some of the contact numbers, copied by Habib at Rangzieb’s dictation after return to England; on it also were several names, encircled and labelled ‘AQ’, which abbreviation Habib in due course accepted stood for Al Qaeda.

Rangzieb also returned to the UK, about six days later, and remained for just under a month until 17 January 2006, when he flew out to Pakistan. Habib remained in Lancashire, except that in April/May he was in Pakistan. There was some surveillance, including by way of covert listening devices, of both men whilst Rangzieb was here, and of Habib after he had left, in each case with various associates. The product of the listening devices formed a further plank of the Crown case. Among other matters, it recorded conversations which appeared to be about such matters as the risks of surveillance and arrest, terrorist activity, military operations against Al Qaeda in Afghanistan/Pakistan, prison conditions in Pakistan, British rules for detention and control of suspected terrorists, American extraordinary rendition and, in the end, martyrdom.

Seven months later, Rangzieb was still in Pakistan. He was there arrested by the Pakistani authorities on 20 August 2006. Thereafter he was held in custody, initially without trial or any court process, for 8 months until April when he was moved to a normal prison. Just over a year after capture he was deported to the UK in early September 2007.

In the meantime, the arrest of Rangzieb in Pakistan triggered the arrest of Habib in Manchester in August 2006. Rangzieb was arrested in September 2007 on his arrival in the UK following deportation. By then the prosecution of Habib was under way, and Rangzieb was joined late to it.

The application to stay

Although Rangzieb did not give evidence before the jury, he did so upon the voire dire. He asserted that after arrest on 20 August 2006 he been (i) held incommunicado, without charge, without access to lawyers or contact with any person outside the prison until December when he was taken to court and allowed to speak although unrepresented, (ii) kept, at least initially, handcuffed and shackled in a cell without daylight or furniture, (iii) deprived of sleep and fed poorly, (iv) beaten with sticks, a piece of tyre on a handle and electric wire and further that (v) on each of days 7, 9 and 11 his captors had removed one fingernail from his left hand by use of pliers. On one occasion only during his year of captivity, he said that he had been seen and questioned by British officers; that, he said, was on day 12.

There was no suggestion that the British officers had ill-treated him in any way, nor that their questions had been other than courteous, nor that he had said anything to them that he did not wish to say. He said that he had complained to them about his treatment, although he had not mentioned his fingernails; on enquiry, the reason he offered for not doing so was that he said he still had bandages on his hand and he assumed that everyone would have known what was being done to him. But the judge was invited to stay the prosecution on the grounds that the British authorities were complicit in the torture of Rangzieb, in that they had condoned it, indeed had effectively “outsourced” it to a foreign State. Additionally, the judge was asked to stay the prosecution on the grounds that the British authorities had connived in Rangzieb’s unlawful return to the UK.

The judge heard evidence on both sides on the voire dire. Some, but not a great deal, he ruled that he had to hear in camera on grounds of national security. He considered all the competing considerations affecting that question, beginning, correctly, with the proposition that everything said and done in court should be said and done in public unless there is a compelling reason for not doing so. We have reviewed his decision; it was reached on the basis of proper material and the exercise of his judgment is unimpeachable. We have had, for the same reason, to hear a part of the argument on the appeal in camera. The defendants of course were present, and fully represented, throughout such parts of the trial as were held in camera, as was the jury, as the defendants have been present, by video link, and very fully represented, throughout the appeal before us.We are anxious that the essence of this case, and indeed as much as can possibly be rehearsed in public, should be dealt with in this judgment, the distribution of which is unrestricted. We take the view that the issue of principle raised by the appeal can and should be dealt with in open judgment. We do not need to deliver a separate closed judgment. We are satisfied that there are no grounds for not accepting the judge’s findings of fact and we do accept them all: see below.

The judge accepted point (i) of Rangzieb’s evidence. There was ample support for his account that his initial detention prior to production in court (or at least prior to his case being put before the court in his absence if that had occurred) had been unlawful by Pakistani law. He also accepted that Rangzieb was held in the conditions asserted, that is to say he accepted point (ii), and he accepted that he may have been deprived of sleep deliberately. As we show below, these facts do not constitute torture. There might be argument that some, but not all, parts of such conditions could constitute the lesser evil characterised by some international instruments as cruel, inhuman or degrading treatment, to which different considerations apply.

Rangzieb had told his brother-in-law long before his period of detention in Pakistan, that he had been tortured during his earlier long spell in the custody of Indian captors between 1994 and 2001. Not only that, but he had told his brother-in-law that his fingernails had been pulled out during that earlier period of captivity and his brother-in-law had seen for himself that the nails were abnormal. This was all before there could have been any question of the behaviour of the 2006 Pakistani captors being under examination. Moreover, the brother-in-law’s report to a police officer of this complaint by Rangzieb of treatment by the Indians had also been made well before there was any suggestion of fingernail pulling in Pakistan. True it was that press reports of Rangzieb’s complaints of torture, made in relation to his period of Indian incarceration, did not refer to fingernail pulling, but there was nevertheless simply no reason why the brother-in-law should not be telling the truth; in particular he could not have been falsifying his account in order to cast doubt on a complaint against Pakistani captors, for when he said it he had no reason to contemplate that such a complaint would ever be made. The judge also heard evidence from a distinguished forensic pathologist, Dr Carey. The effect of that evidence was that whilst the appearance of three of the left-hand fingernails was consistent with sudden removal of the nails, if all three had been damaged at much the same time, as Rangzieb insisted, it had not happened earlier than about March 2007. That was because, although the nails could no doubt have been traumatised at any time before 2006/2007, the indications were that something had occurred to at least one of them after March 2007.

The combination of these independent pieces of evidence, together with some evidence perforce heard in camera, led the judge to conclude that Rangzieb was not telling the truth when he asserted that the nails had been pulled out before the occasion when he said he had been visited by British officers. Nor did the judge believe Rangzieb’s evidence of beatings or of any physical injury, at least in the early days of captivity prior to any visit by British officers. What had happened to Rangzieb’s fingernails could not reliably be determined. The judge left open the possibility that he may have suffered fingernail removal much later on, some months after any visit by British officers, but that was not the period on which the voire dire was focussed.

The judge expressly rejected the suggestion of outsourcing torture by British authorities; there was, he found, simply no evidence that they had assisted or encouraged the Pakistani detainers to detain him unlawfully or to ill-treat him in any way, whether amounting to torture or not. Further, he found that no part of any product of questioning in Pakistan (by anyone) was relied on in the trial before the judge, nor had the prosecution case against Rangzieb or Habib been informed by any material emanating from such questioning. At the request of the appellants we have reviewed his findings of fact. We are quite satisfied that there are no grounds for impugning them. We have also looked, at the request of the appellants, at some additional material on the basis of which it is contended that questions asked of Rangzieb when in Pakistan informed actions in relation to other suspects. Whether that is so or not, it does not affect the judge’s conclusions that there was simply no connection between Rangzieb’s questioning in Pakistan and this trial.

Therefore the result of the judge’s enquiry was that torture had not been demonstrated to have occurred, and had been demonstrated not to have occurred before the sole occasion when Rangzieb said he had been seen by British officers. Even if it had occurred later, it had no impact direct or indirect upon the trial.

The judge went on to hold that the power to stay a prosecution is a power to prevent the process of the court being abused. He directed himself as follows:

“It is important to understand that my concern is restricted to an investigation of whether the process of the court has been abused. The process of the court includes, it is clear, the means used to get a defendant within the jurisdiction so that he can be tried in the UK court. It would also include the means employed to obtain evidence for use in a prosecution. It also can include the deliberate failure to observe legal professional privilege. But the process of the court does not include the means used by the security services to ensure the safety of British citizens except insofar as that impinges on the trial process. That does not mean that the court can or will endorse the use of torture…

What it means is that the power of a criminal court only extends to the control of the process of the criminal trial with which it is at the time concerned. As a general principle, in order to protect the lives of its citizens, the UK may exchange information with countries whose record on human rights we may rightly or wrongly regard as inferior to ours. That can only be the concern of the criminal courts and the subject of an abuse application if it impinges on the trial process.”

In this appeal, the critical submission made on Rangzieb’s behalf by Mr Bennathan QC is that the judge applied the wrong test and ought to have stayed this prosecution. He should have done so, it is submitted, on either or both of two grounds:

There is no doubt about the jurisdiction to stay for abuse of process. It applies where the trial process will be internally unfair (Attorney-General’s Reference No 1 of 1990 (1992) 95 Cr App R 296), but it is not limited to such cases. It may be exercised also where, by reason of gross executive misconduct manipulating the process of the court, the defendant has been deprived of the protection of the rule of law and it would as a result be unfair to put him on trial at all. That was clearly established by R v Horseferry Rd Magistrates Court ex p Bennett [1994] 1 AC 42 and R v Mullen [1999] 2 Cr App R 143. In both cases the defendant had been kidnapped abroad and brought into this jurisdiction by an unlawful rendition, to which the British authorities were party. In both those cases, however, there was a clear link between the abuse of power on the part of the executive/prosecution and the trial; the trial was the very object and result of the unlawful abuse of power. Thus in those cases it is properly said that not only is the misconduct of the executive an affront to the public conscience, but also, and critically, that the trial itself is such an affront. The first is not a sufficient ground for a stay, but the second is; the jurisdiction does not exist to discipline the police or other executive arms of the State (although of course it will incidentally do so), but rather to protect the integrity of the processes of justice. In R v Grant [2005] EWCA Crim 1089; [2005] 2 Cr App R 28 at 409 the police had deliberately and unlawfully eavesdropped on and recorded privileged conversations between a suspect and his lawyer. This court held that a stay should be imposed in consequence even without there being any product of the listening giving rise to evidence relied on at trial. We are bound by that decision, albeit that it appears to represent some extension of the jurisdiction, but we observe, as did the judge in the course of argument in this case, that even without use of the material in the trial there was a clear link between a suspect’s right of private access to legal advice when facing criminal charges and his subsequent trial on those charges. Indeed, the court in that case described the behaviour of the police as an affront to the integrity of the justice system (paragraph [54] – our emphasis). Moreover, that description is unsurprising since the actions of the police can only have been deliberately unlawful and there existed no even colourable claim to a necessity to balance competing considerations of public interest. We also accept that the jurisdiction to stay may, in certain circumstances, be invoked where to try a defendant would involve a breach by this country of a specific international obligation not to do so: see for example R v Uxbridge Magistrates Court ex p Adimi [2001] QB 667, considered in R v LM & others [2010] EWCA Crim 2327. In those cases also, however, there was the clearest link between the trial itself and the international obligation; to undertake the former involved a direct breach of the latter. It does not at all follow that in every case in which it is suggested that there has been a breach by the UK of an international obligation in respect of an individual, that individual becomes exempt from prosecution, and (if guilty) punishment, for an offence which he has committed.

The first limb of Rangzieb’s case on the application to stay was that the UK had connived in this case, as in Bennett and Mullen, at his unlawful rendition to this country by the Pakistani authorities for the purpose of putting him on trial here. If that had been so, it would indeed provide a ground for staying the prosecution. There would be a plain connection between an international wrong, to which the British authorities were party, and the trial. The judge, however, investigated this very thoroughly in the voire dire. It is clear that there was no unlawful rendition. Rangzieb is a British national. He does not enjoy additional Pakistani nationality. He could do so only if either he or his father had registered him with Pakistani authorities and neither did. That was his own evidence, as well as the assertion made by his family. As a result, Pakistan was fully entitled to deport him and no wrong was involved in doing so, whether by Pakistani, English or international law. Pakistan plainly did not wish to keep him, and the deportation was to the country of which he is a national. That the English police, who were in the midst of an investigation into his activities in England, kept in touch with the Pakistani authorities and were told when he would be deported, no doubt facilitated their arrest of him but does not constitute any kind of unlawful rendition. Indeed, although the finding was not necessary to the conclusion, the judge found that Rangzieb positively wished to be sent to England and was aware of the risk that he would be arrested on arrival. This first limb of Rangzieb’s application for a stay was correctly rejected by the judge. This appeal depends not on this limb, but on the second, which is based upon his allegation that he was tortured whilst in Pakistan.

As to the second limb, the argument runs as follows.

As to step (i), we agree that it is clear public international law that torture is outlawed. We think that we should approach this part of the argument on the basis that the prohibition of torture has achieved the status of an entrenched peremptory norm of law (ius cogens), so that derogation from it is not permitted and thus it will prevail over a treaty provision to contrary effect: see Article 53 of the Vienna Convention on the Law of Treaties, 1969. That was the view taken by the International Criminal Tribunal for former Yugoslavia in Prosecutor v Furundzija (case No IT-95-17/2-T 1988) at paragraphs [153] and [154]. It was also the opinion of Lord Browne-Wilkinson in ex p Pinochet (No 3); [2001] 1 AC 147 at 198 and it was common ground before the House of Lords in A v Home Secretary (No 2) [2005] UKHL 71; [2006] 2 AC 221: see paragraph [33]. This legal position involves no novelty for an English common lawyer, since torture has been outlawed as a tool of investigation in this country since the abolition of the Star Chamber in 1641 and was prohibited by Parliament in the Bill of Rights 1689. The same prohibition was applied (and still applies) both in England and in Scotland through the Treason Act 1708. The British legal history is analysed in some detail by Lord Bingham in A (No 2) at paragraphs [10] to [17].

In modern times, this ius cogens finds its expression in a number of places. The Universal Declaration of Human Rights 1948 contained a prohibition on torture in Article 5, as did The International Covenant on Civil and Political Rights 1966 (“ICCPR”) in Article 7. A declaration against torture was adopted by the UN General Assembly in 1975 in Resolution 3452. Meanwhile, Article 3 of the European Convention on Human Rights 1950 (“ECHR”) applied a similar rule to the European parties to that instrument. Then in 1984 the multi-lateral UN Convention against Torture (Cm 1775) (“the Torture Convention”) was concluded. Some 147 States of the 192 members of the UN (including the UK) are now party to it. It defines torture, for the purposes of public international law as:

“any act by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity…”

The Torture Convention creates direct treaty obligations as between the States which are party to it. They include an obligation to take effective measures to prevent torture in any territory under their jurisdiction (Article 2), to make torture, including attempt or complicity/participation in it, an offence (Article 4), to take action either by prosecution or extradition against a foreign offender found within its shores (Articles 5(2) and 6 to 8), and not to admit into evidence a statement which is the product of torture (wherever committed) (Article 15). The fundamental nature of the prohibition upon torture is demonstrated by the rules in Articles 2(2) and 2(3) that neither national emergency, however exceptional, nor superior orders can justify departure from the ban. Similarly Article 3 of the ECHR imposes an unqualified obligation.

Whilst Article 3 ECHR and Article 7 ICCPR do not in their general prohibitions distinguish between torture and the wider expression ‘cruel, inhuman or degrading treatment’, the Torture Convention, with its detailed provisions, does. Its Article 16 makes the distinction clear. Under it, the States party to the Convention undertake to prevent, within their territorial jurisdictions,“other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1” (emphasis supplied). Some of the specific obligations under the Convention are applied as much to these lesser forms of improper treatment as they are to torture, but not all are and the duties laid upon States are significantly less extensive. It is plain, as Lord Bingham observed in A (No 2) at paragraph [53], that the distinction is maintained; see also Lord Hope at [126]. One important example is that the Article 15 prohibition on the admission of evidence which is the product of torture is not extended to the product of cruel (etc) treatment, although no doubt in English law the latter would inevitably be excluded, if a confession, on the grounds that it was obtained by oppression (both at common law and under section 76 Police and Criminal Evidence Act 1984) and would no doubt, if accusatory material, either fail to meet the interests of justice test for the admission of hearsay (section 114(1)(d) Criminal Justice Act 2003) or would be excluded under s 78 of the 1984 Act. The distinction is, accordingly, one illustration of the truism that not every rule of law, however well established it may be in English or other Western systems, or however desirable it might appear to be, can be said to have achieved (at least yet) the near universal recognition necessary to constitute it as ius cogens.

Principles of public international law, however entrenched, bind States and are not directly part of English law. In the event of a conflict between them and English law, the duty of the English court is to apply domestic law. The principles of public international law may, however, find indirect expression in English law in a number of ways which include the following non-exhaustive examples. Firstly, some principles of public international law may also be principles of the common law, especially where they share a customary origin. Secondly, in the case of those articles of the ECHR which are scheduled to the Human Rights Act 1998, which include Article 3, section 6 of the Act makes it English law that a public authority, including a court, may not act inconsistently with their provisions. Thirdly, and more generally, English courts will construe English statutes, where the ordinary rules of construction do not prevent it, in such a manner as to avoid placing the UK in breach of an international obligation existing when the statute was passed, whether under treaty or otherwise, thus including of course ius cogens. Fourthly, the legislature will frequently enact legislation to give effect to international obligations. In the case of the Torture Convention, its principal obligation, under Article 4, to make torture an offence, has resulted in section 134 Criminal Justice Act 1988. Torture is made a criminal offence when committed by a person acting in an official or public capacity wherever in the world it is done and whatever the nationality of the offender. Fifthly, we accept that where the exercise of a discretionary judgment is concerned, such as upon an application to stay a prosecution for abuse of the process of the court, it may be right for the court, in an appropriate case, to have regard to the scope of this country’s obligations under public international law. All that said, in this case we see no conflict between English law and this country’s obligations under public international law.

We address the issue of principle, remembering as we do that Rangzieb was not tortured by or on behalf of the British, nor with their encouragement and he was not tortured at any time before the single occasion when he said he was seen by British officers. Indeed, whether or not he was tortured at all is not properly resolved. The question of principle is nevertheless important and is this. If intelligence is regularly shared with a State where there exists the possibility that torture may be employed, when should a prosecution against a man who has been in the hands of that State be stayed ? That question was, in our view, answered authoritatively by the House of Lords in A v Home Secretary (No 2).

In that case there had originally been detention orders made under part 4 of the Anti-terrorism, Crime and Security Act 2001, but those orders had been struck down by the House in its earlier decision (A v Home Secretary [2004] UKHL 56; [2005] 2 AC 68; “A (No 1)”) on grounds that the legislation unfairly discriminated against foreign nationals. There remained, however, the quite separate point of principle whether the Special Immigration Appeal Tribunal (“SIAC”) could, when reviewing the Home Secretary’s decision on an immigration matter within its remit, receive evidence which was the product of torture abroad by others without British participation, whether a confession or accusatory material. That point remained of importance despite the changes in the legislation which followed the decision in A (No 1). In holding that SIAC could not receive such material, the House founded upon the critical distinction between, on the one hand, the receipt by a court of such evidence and, on the other, the use which may have to be made of it by non-judicial authorities in discharge of their duties to protect public safety. The former is prohibited by the common law, as well as by public international law through (inter alia) Article 15 of the Torture Convention. The latter is not. Their Lordships expressly accepted that in deciding to certify that he reasonably believes a person to be a risk to national security, the Home Secretary is entitled to rely on material gathered from a foreign source, with which information and intelligence is shared, even if such material might be the product of torture. Likewise, the security services or the police are not required to close their eyes to information which helps to protect the public’s safety, such as for example by identifying persons presenting a threat of terrorism, or places where bombs are being made, even if that information comes to them from a foreign source which has used torture. Moreover, if subsequently called upon to justify a person’s detention or other actions to control him, the foreign material can be relied upon. What however cannot be done is to rely in court on the information to make a case against someone.

Each of their Lordships relied upon this distinction. Lord Bingham put it in this way at paragraphs [47-48]:

“I am prepared to accept … that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence…..

This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings.

This is not an unusual position. It arises whenever the Secretary of State (or any other public official) relies on information which the rules of public interest immunity prevent him adducing in evidence…It is a situation which arises where action is based on a warranted interception and there is no dispensation which permits evidence to be given. This may be seen as an anomaly, but like the anomaly to which the rule in R v Warickshall gives rise it springs from the tension between practical common sense and the need to protect the individual against unfair incrimination. The common law is not intolerant of anomaly.”

Lord Nicholls, Lord Hope and Lord Brown went further in explaining the basis of the distinction. The Secretary of State, and likewise the police or intelligence services, have a plain duty to preserve the lives of British citizens and others present in this jurisdiction. Lord Nicholls, having referred to the practical necessity of the sharing of what are often fragments of information, acquired from different sources and pieced together for the purpose of protecting life, whether by finding a bomb or arresting a suspect, confronted the realities of international intelligence at paragraph [69]:

“In both these instances the executive arm of the state is open to the charge that it is condoning torture. So, in a sense, it is. The government is using information obtained by torture. But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this.”

It is clear that public authorities are likely to be faced with conflicting duties. The duty to preserve the safety of those within a State’s borders means that some measure of co-operation, and information-sharing with regimes whose standards may sometimes fall below what is internationally acceptable, is a practical necessity if the duty is to be done. No doubt Mr Bennathan is right to say that the oft-given example of the tip-off about the ticking bomb is likely to be a single instance rather than the common currency of a settled practice of information sharing, although it might occur, as, more readily, might the direct identification of a bomb factory. But the reality of counter-terrorism, as of much criminal investigation, is likely to be the painstaking fitting together of jigsaw pieces of disparate information from disparate sources. Such is an essential part of the frustration of terrorist planning.

As Mr Bennathan rightly submits, the argument in A (No 2) proceeded upon the basis that there was no suggestion of complicity by the UK authorities in any torture which might be in question. But his contention that that provides a reason for distinguishing the reasoning of the House cannot be correct. If anyone had thought that the sharing of information with a regime which might resort (or indeed had actually resorted) to torture constituted complicity in torture that would have been a simple basis for the decision and their Lordships could not have relied on the distinction between what impacts on a court and what does not. The sharing of information was necessarily addressed by the speeches and was specifically endorsed.

We are unable to agree that either Lord Phillips’ endorsement at paragraph 153 in RB (Algeria) v SSHD [2009] UKHL 10; [2009] 2 WLR 512 of a passage in the judgment of Buxton LJ in the court below in one of the cases there under appeal or the decision of the European Court of Human Rights in Jalloh v Germany (2007) 44 EHRR 32 creates any qualification to or development of A (No 2). The issue under discussion in RB (Algeria) was the risk that a trial would take place abroad based upon accusatory material obtained under torture. Buxton LJ’s statement that the reason underlying the prohibition on the receipt in evidence of the product of torture is not confined to the unfairness of a trial but is primarily because the State must stand firm against torture, and Lord Phillip’s endorsement of that statement, do not mean that either judge was extending the consequences of the prohibition on torture beyond the line drawn in A (No 2). On the contrary, the case was about the use in court of the product of torture and the observation was offered as the basis for the rule. It is also to be noted that the outcome of RB (Algeria) was a decision (reversing the Court of Appeal) that it was not enough to prevent deportation that local safeguards against the risk of use at trial of the product of torture would not meet English, or European, standards. Jalloh, referred to by Buxton LJ and containing a similar rationale, was also a case about the use in court of material obtained by force, in that instance by forcible administration of an emetic to obtain evidence that a suspect had swallowed drugs he was thought to be peddling. Lastly, (even if it were legitimate in law to do so) it is also not possible to find in Lord Bingham’s subsequent extra-judicial monograph The Rule of Law any basis for questioning the decision in A (No 2); on the contrary, at page 154 that case is cited to contrast the court’s stance with the less positive government submissions made to it.

We are satisfied that the reasoning of the House in A (No 2) correctly reflects the basis on which English courts may stay a prosecution for abuse of process under the second limb of ex p Bennett. The jurisdiction does not exist to discipline the executive, the police or the intelligence services, although it may incidentally do so. It exists to preserve the integrity of the trial process. The judge was right to hold that what is required for its exercise is a connection between any alleged wrongdoing and the trial. Since no evidence which was the product of any torture (or indeed other ill-treatment) that there might arguably have been was adduced at the trial and since the judge held, after full enquiry, that neither had it impacted upon the trial by way of informing the investigation, he was right to refuse to stay the prosecution. Indeed, the latter part of the test applied by the judge was rather more favourable to the defendants than it need have been. It is apparent from A (No 2) that some impact upon the investigation would be lawful, so long as it did not amount, directly or indirectly, to employing the product of torture to make a case against the appellants.

Torture is wrong. If it had occurred there could be no excuse for it, not even if Rangzieb was a suspected terrorist who might kill people. But the question was not whether it is wrong, but what consequences flow from it if it occurred. Mr Bennathan rightly accepted before us that it is not, and cannot be, the law that every act of torture has the consequence that the tortured person becomes immune from prosecution in every country and for all time, whatever crime he may commit. He contended that there must be a connection between the torture and the prosecution. The issue is the nature of the connection. For the reasons given, we are satisfied that the necessary connection exists where the torture has an impact on the trial, but not otherwise. Even if there had been torture whilst Rangzieb was in Pakistan, it had no bearing on the trial and there was no reason why the question of whether or not he was guilty of an antecedent crime in England should not be decided according to law.

Whilst that is sufficient to resolve this aspect of the appeal, we should record that it is not possible to treat as established law the extended concept of “complicity in torture” which is an essential plank of the appellant’s argument at steps (iii) and (iv).

It is no doubt a general principle of law of sufficient universality that a secondary party to a crime is responsible for it in law, just as the principal actor is. So it is unsurprising that Article 4 of the Torture Convention, in requiring States to make torture an offence, stipulates also that the offence created must extend to complicity or participation in torture. On ordinary principles of English law, if A aids or abets (ie assists) B to commit torture, or if he counsels or procures (ie encourages or arranges) torture by B, then A is no doubt guilty, as is B. But simply to receive information from B which is needed for the safety of A’s citizens but which is known or suspected to be the product of torture would not, without more, amount in English law to either of these forms of secondary participation. Indeed, A might be doing its best to discourage any ill treatment by B of those B detains. We do not accept Mr Bennathan’s submission that the particular type of joint responsibility which arises when X and Y together commit crime 1, and in the course of it Y commits crime 2 (Chang Wang Sui v The Queen, [1985] AC 168, Hui Chi-Ming v The Queen [1992] 1 AC 34, R v Powell and English [1999] 1 AC 1 and R v Rahman [2008] UKHL 45; [2009] 1 AC 129) is analogous; such is an extension of ordinary secondary liability and is founded upon voluntary participation in crime 1.

Mr Bennathan’s extended concept of complicity is derived from two sources. The first is a report of the UN Special Rapporteur on Human Rights and the Countering of Terrorism (A/HRC/10/3; 4 February 2009). The second is a report in this country of the Joint Parliamentary Committee on Human Rights (23^rd report of session 2008-09; 21 July 2009).

The UN Special Rapporteur is an ad hoc officer appointed to report to the Human Rights Commission on matters related to human rights in the context of countering terrorism. He is a distinguished international lawyer specialising in the implementation of human rights. His mandate includes duties to make recommendations on the promotion and protection of human rights in that context, to collect information, to identify and recommend best practices and to liaise with government and international organisations. His report chronicles his work in the year December 2007/2008 and addresses in particular his concerns as to the ambit of national controls over the operational methods of intelligence services worldwide. His recommendations, which ought no doubt to be accorded great respect given the source of his mandate and his international perspective, are significantly aspirational rather than declaratory of existing law. They include the advice that intelligence services ought not, if possible, to be entrusted with law enforcement activities and that intelligence-sharing agreements between states should provide for the investigation by State A’s regulatory apparatus of the activities of State B. Neither represents existing law.

In the course of its review of the activities of intelligence services, and in a passage dealing with extraordinary rendition for the purposes of torture, the report says this at paragraph 53:

“States must not aid or assist in the commission of acts of torture or recognize such practices as lawful, including by relying on intelligence information obtained through torture.States must introduce safeguards preventing intelligence agencies from making use of such intelligence. ”

The same must be true of the even wider propositions to be found in paragraphs 54 and 55 of the Report. Those are as follows:

“Therefore, the Special Rapporteur believes that the active or passive participation by States in the interrogation of persons held by another State constitutes an internationally wrongful act if the State knew or ought to have known that the person was facing a real risk of tortureor other prohibited treatment, including arbitrary detention.

States that receive information obtained through torture or inhuman and degrading treatment are complicit in the commission of internationally wrongful acts.”

The Joint Parliamentary Committee on Human Rights drew upon the report of the Special Rapporteur and reached similar conclusions in its own report. Whilst it had high quality legal input, it is not and does not purport to be a body empowered to make authoritative declarations of the law.

The wider concepts of complicity advanced in these two documents are not based upon either treaty or customary law, which are the two principal sources of public international law as stated in Article 38 of the Statute of the International Court of Justice, nor are they founded upon any decision of an international tribunal. They certainly represent significant extensions to the Torture Convention. Nor can it be said that they represent general principles of law recognised by civilised nations, a further recognised source of public international law. They may or may not be desirable developments (on that, opinions amongst States clearly differ), but it is impossible to say that they have at present the necessary general international acceptance amongst States to have achieved the status of binding law, still less of entrenched ius cogens. So far as an English court is concerned, they are also contrary to the opinions of the House of Lords in its judicial capacity in A v Home Secretary (No 2).

For all these reasons, the judge was right to refuse to stay the prosecution against Rangzieb. Both his principal ground of appeal, and Habib’s dependent ground which he advanced in the event that Rangzieb succeeded, must accordingly fail.

Professor Clarke

At the time of the trial (October 2008) it is likely that most jurors knew that Al Qaeda was a terrorist organisation with Osama Bin Laden at its head. Most jurors would probably have known that Al Qaeda was generally accepted to have been responsible for the attacks on the World Trade Centre in New York in September 2001 and for the bombings in London in July 2005. It is unlikely that most members of the jury would have known very much more about Al Qaeda than that. Greater knowledge is held by those who belong to Al Qaeda, by governments (often via their security services), journalists, analysts and others who make a study of such matters.

Professor Michael Clarke is the Director of the Royal United Services Institute. His area of expertise is international affairs. He has a particular interest in terrorism. From 1997 to 2007 he was Professor of Defence studies at Kings College London. Between 2001 and 2005 he was also Director of the college’s International Policy Institute and he is now visiting Professor of Defence Studies there. He is an adviser to the House of Commons Defence Committee. He has published widely in his area of expertise, contributes to academic treatises and lectures frequently. He is one of a number of experts who are engaged in the study of terrorism. He has given evidence in a number of trials of alleged terrorists.

The Crown sought to call Professor Clarke to give evidence in this trial about the nature of Al Qaeda, its methods (including its areas of operation) and its organisation. The defence objected to the admission of his evidence, contending that the information he relied on was not an established body of data and did not therefore fall within the exception to the hearsay rule. It had, it was said, to be proved independently. There was a voire dire on 19^th September 2008 at which Professor Clarke gave evidence. The judge ruled that the Crown could call him to deal with :-

After this ruling Rangzieb served a defence case statement in which he admitted for the first time membership of HuM, itself a proscribed organisation. Just before trial he pleaded guilty to an added count charging membership of HuM. The Prosecution asked Professor Clarke to provide a statement about HuM in time for the trial. We think it safe to assume that until the trial most jurors had never heard of HuM. No additional objection was taken in respect of that evidence.

At trial the prosecution relied on Professor Clarke’s evidence on the following matters:-

Before trial Professor Clarke provided to the defence many hundreds of pages of documents which formed the sources for the content of his statements. They ran to several volumes. We were taken to a very few.

The judge was invited by all parties to treat the starting point in law as the South Australian case of R v Bonython[1984] SASR 45. There King CJ described two limbs to the test for admissibility for expert evidence, the first limb having two parts:-

The test in Bonython has been approved by this court (see, eg, R v Hodges[2003] EWCA Crim 290 and R v Dallagher[2003] 1 Cr App R 12 at 195.) We should note in passing that there is some debate about the scope of the second part of the first limb which might be restrictive: see R v Robb(1991) 93 Cr App Rep 161 and the extract from Cross and Tapper on Evidence (now at page 545 of the 12^th edition) approved in Dallagher:

“the better, and now more widely accepted, view is that so long as the field is sufficiently well-established to pass the ordinary tests of relevance and reliability, then no enhanced test of admissibility should be applied, but the weight of the evidence should be established by the same forensic techniques applicable elsewhere”.

There was no dispute that the jury required assistance on these matters. A time may come when judicial notice may be taken of generally accepted facts about Al Qaeda. That time had not been reached at the time of this trial. The evidence was plainly relevant. Nor was it disputed that Professor Clarke is a distinguished expert in the field of international terrorism. That much is plain from his CV.

The judge’s focus was on the submissions made to him, namely that the opinion was based wholly on hearsay, which went to the second part of the first limb of the Bonythontest. Before us, that argument was repeated but also developed and refined. The submissions to us were as follows.

It was accepted, inevitably in our view, that it is permissible to adduce expert evidence to establish historical facts: see for example R v Sawoniuk[2002]Cr App R 220 where expert evidence had been called at trial on a number of topics, including Nazi policy towards Jews during the 1930s and 40s

It was submitted to us, as it was to the judge, that in Sawoniuk the expert evidence relied on primary sources that were matters of history but in this case the facts are much less clearly established. This is a matter of degree and weight and not of admissibility. All history is constantly being revised and re-written; that does not mean that those engaged in the process are not experts in their field. Professor Clarke agreed in cross examination that he was engaged upon a first draft of history. We agree that that carries the implication that there may be other drafts. That does not make it unreliable, still less inadmissible. Some of the evidence of an historian may, like that of any expert, turn out to be wrong, and some did here. But deciding whether it is or is not correct is the task of the jury once the expertise of the witness in the field of which he is giving evidence is established

The task of the contemporary historian (here an academic researching terrorism) clearly includes the collection of information from a variety of sources and its assessment by testing it against other pieces of information (whether known in the wider public, or amongst academics and others working in the same field). It is carried out against a background of experience and of frequent discussion with other experts. At the end of the process the historian is in a position to give an opinion as to the facts. To suggest that each individual piece of original information which he considers must be independently proved is to misunderstand the process. The jury is not necessarily going to be asked to accept that each piece of original information is correct. It will be asked to consider whether or not the expert’s conclusions about the whole picture are correct. It is inevitable that some original information will turn out to be wrong. One only has to glance at newspaper reports of trials in this country to be aware that what is said in newspapers or on the internet is often inaccurate. In the early stages of the process the historian is often not relying on the contents of documents for the truth of what they say. He is simply recording the fact that it has been said. It is only after the assessment and synthesis that the historian comes to a view as to what the facts are. That may mean in the end that the historian is in fact accepting the truth of what certain people have said, but that comes at the end of the process, not the beginning.

The judge summarised Professor Clarke’s sources as:

“government statements, statements from Al Qaeda, reports and analysis reports from organisation such as the Jamestown Foundation, public or private speeches by informed individuals, reports on the Internet from organisations such as the BBC and newspaper and magazine reports from journalists. He does not use this information uncritically. He is aware, for example, that different governments will wish to give different impressions of events, and he is able to form an impression of the reliability of journalists from his knowledge of them. He also regularly meets and shares information with other experts in the field, and people who have personal knowledge of the operations of Al Qaeda. Some of these sources are secret, but the identity of most of the sources can be disclosed to the defence”.

The trial judge rightly concluded that the study of terrorism is a well recognised and accepted area of academic study. He noted

“Within that study I am satisfied that academics use a number of different sources such as journalists’ reports and government statements. It is the raw data from which in part they draw their conclusions. Historians do exactly the same thing. The importance of the academic method is that these sources are not accepted uncritically. They are used, along with other information, to form conclusions.”

We agree that Professor Clarke’s materials were both appropriate and legitimate and that his methods of assessment were properly academic.

Mr Wood QC submitted to us that the effect of section 127 of the Criminal Justice Act 2003 is to require all primary facts relied upon to be proved independently. As the judge correctly observed, that section deals with cases where part of the scientific testing has been carried out by someone else; it applies where A (usually the assistant) has made a statement for the criminal proceedings and the expert B seeks to rely on it: see s 127(1). Quite apart from this provision, it is commonplace for experts to rely on hearsay material – the opinions, research and surveys of material by others are but examples. The use of such sources comes within the common law exception to the hearsay rule applicable to the evidence of experts, preserved by section 118 (subparagraph 8) of the 2003 Act.

The judge considered whether to exclude the evidence on the basis that it would be unfair to allow it, under section 78 of the Police and Criminal Evidence Act 1984. No suggestion is made that his analysis of that question was other than correct. He observed that it was open to the defence to cross examine Professor Clarke on his sources and their reliability. That is precisely what happened.

The contention is that Professor Clarke relied on secret information in his work. Whilst it was not in dispute that he did receive information from sources he did not name he said that he used such information for context, rather than for facts. We agree that an expert should not be called as a device to avoid the ordinary rules of evidence, and that if an expert’s evidence were effectively unchallengeable because based on sources he refuses to expose to scrutiny that would be likely to be a reason for refusing to admit it. But neither of those situations applied in this case. So far as we can tell the only example of Professor Clarke relying on secret information in this case was in respect of the “signing up” to the fatwa, set out below. That plainly was a matter of fact, not context, but was wisely disclaimed in the event.

For all these reasons we are satisfied that the evidence of Professor Clarke was admissible. Its accuracy and reliability were for the jury.

As to the separate submission that Professor Clarke’s evidence has such demonstrated weaknesses that the conviction is unsafe, much of it was unchallenged. In respect of some matters his evidence was explored, developed or refuted. It is plain that the adversarial process worked as it should. For his cross examination counsel for Rangzieb used Professor Clarke’s own sources, publications by other well known experts, at least one statement from a witness in Pakistan, and instructions from his client. The cross examination was robust in respect of 3 matters where Professor Clarke accepted that his view may be wrong.

As part of his evidence about the relationship between HuM and Al Qaeda Professor Clarke referred to the activities of three individuals. As to the first two there is no complaint about the accuracy of his evidence. The third was John Walker LIndh, in relation to whom the appellants say that the jury was misled. Asked for the source of his information about Lindh’s movements between HuM and Al Qaeda, Professor Clarke referred to the indictment preferred against him by the US Dept of Justice. When asked whether or not LIndh had been convicted he said that he believed he had not been convicted of all the charges. Much has been written about Lindh. We were provided with part of his extensive entry on the online encylopaedia, Wikipedia, were asked to accept it, and have looked at the whole current entry. According to it, there was a plea bargain between him and the US Department of Justice. He pleaded guilty to limited charges and agreed not to pursue in the courts allegations of torture against the United States; the prosecutors agreed to drop the remainder (ie most) of the charges against him. All this happened in 2002; the pleas must have been public knowledge. It is surprising that no one (on either side) had been able to check the position by the time of the trial in 2008 and difficult to see how the informal Wikipedia material now put before us can be regarded as fresh evidence. However, even assuming that it is, the fresh material is similar to what was before the jury in that it provides a further example of a lack of attention to detail on the part of Professor Clarke which was in places undoubtedly not impressive; but it is no more than that. The issue for the jury was not whether Lindh was guilty of the offences on the indictment or even whether he had been a member of both organisations. It was whether membership HuM precluded membership of Al Qaeda. As we show below this was, in the end, scarcely an issue.

We heard detailed argument about events at a subsequent trial in 2009, some months after the present case. The defendants were accused of conspiring with the 7^th July 2005 London bombers. Professor Clarke gave evidence. There was no argument about admissibility. He asserted (unexpectedly) that the minimum period for the plotting of a terrorist attack was 2 years. We were told that it was common ground that the July 2005 bombings were not planned until, at the earliest, late November 2004. The assertion led to a request of Professor Clarke for further disclosure. One document disclosed was a draft article which, we are told, contained obvious errors about the nature of a training camp at Malakand, and about who had visited it. All the errors could be demonstrated, we were told, by reference to information in the public domain. Professor Clarke said that the article would be checked and the errors removed before publication. In the event all the defendants were acquitted. It is not suggested by the appellants that this evidence had more than peripheral relevance to the issues in the 2009 trial. It has no direct relevance to the trial with which we are concerned. It is relied on as another example of a lack of rigour in Professor Clarke’s approach, and a willingness to go beyond the bounds of his expertise.

It seems to us that the two matters which have come to light since the trial do not add anything significant to the three matters we have identified above namely the misattribution of the signature on the fatwa, the mistake about military honours and the error as to the location of a training camp, all of which the jury was well aware of. The judge’s treatment of Professor Clarke’s evidence in the summing up was impeccable. He correctly directed the jury as to the role of the expert and their approach to expert evidence. No complaint is or could be made about that. He told them in terms that the evidence of Professor Clarke demanded “very careful and critical assessment”. He gave proper (and repeated) emphasis to the defence submission that the sources of information were inherently unreliable, and that that unreliability invalidated the conclusions. He reminded the jury – in no little detail - of the demonstrated errors. He told them in terms that the issue of his credibility was for them. He reminded the jury again of the defence submission that the nature of the information “is such that it will always be inherently unreliable and no safe conclusions can be drawn from it” and he concluded by directing them that:

“if you decide that the information is inherently unreliable, then do not base any decision you make solely on the evidence of Professor Clarke.”

It is the appellants’ submission that the evidence of Professor Clarke was fundamental to the case against them. We have reviewed the evidence in respect of the matters said to be central.

At the outset of the case Professor Clarke’s evidence appeared likely to be important to the interpretation of GS/167, on which Habib was alleged to have written names labelled “AQ”, in particular to demonstrate the Crown’s case that the people named were members of Al Qaeda. However, this turned out not to be in dispute. Habib later gave evidence that he had written down all the names on the page, having been given them by Rangzieb, and he said that they were indeed noted because they were Al Qaeda people; he said he wanted to meet such people and to go to their training camps for his asserted publicity purposes. Whilst at the time of the voire dire Professor Clarke’s evidence appeared to be of central importance, by the time the jury came to consider their verdicts it had been wholly overshadowed by the evidence of Habib.

The other matters pertaining to Al Qaeda (the fact that it operates as a franchise, its structure, its geographical reach and the use by its operatives of methods such as email dead letter boxes and invisible ink) were all unchallenged. This was all useful, uncontroversial background information. It was not central to the case.

The other potential issue was whether membership of HuM and Al Qaeda were mutually exclusive. This turned out to be much less of an issue than it appeared at the time of the voire dire it might be. As at the voire dire, and indeed when Professor Clarke gave evidence it was not known whether Rangzieb would assert that membership of HuM precluded membership of Al Qaeda, and accordingly the Crown adduced evidence from Clarke on this question. He gave evidence about the activities of HuM. He gave evidence about Kaymar Ayoub a member of HuM who had trained in HuM camps and then made contact with Al Qaeda to launch attacks in India. A series of initiatives between the two organisations came to nothing. This was not challenged. Professor Clarke said there was no organisational bar to prevent movement between them. He said that Al Qaeda members trained in HuM camps. He also gave evidence about the movement of Omar Saeed Sheikh and John Walker Lindh between the two organisations; we have referred earlier to Lindh. He accepted that anyone moving from HuM to Al Qaeda (or from any other terrorist organisation to Al Qaeda) would be regarded with some suspicion, particularly if there was a risk that their organisation may have been penetrated by Indian security. He was cross examined about it, by reference to publications by other experts, but also, expressly, on Rangzieb’s instructions. Rangzieb was a self-confessed member of HuM and in a position to know whether membership of the two organisations was impossible, whether sequentially or simultaneously. It was not put to Professor Clarke that it was. Nor did Rangzieb give evidence about it. There was no reason to think that membership of HuM precluded membership of Al Qaeda.

It is submitted on behalf of Rangzieb that the prosecution relied on Professor Clarke’s evidence that HuM concentrated on the running of training camps rather than involving themselves in terrorist attacks outside Kashmir, to demonstrate that he must have been involved in non HuM business when in Dubai. We agree that whether or not Rangzieb’s travels, and his recorded discussions in Dubai and elsewhere, could be explained entirely by a connection with HuM was a vital issue for the jury, but Professor Clarke’s evidence was not crucial upon it. Much of Rangzieb’s case, as put in cross examination, was indeed that HuM’s interests were wholly in Kashmir, and Professor Clarke did not entirely agree.

Our review leads us to the conclusion that Professor Clarke’s evidence, whatever its original scope and purpose, was neither central nor fundamental to the case against either of these appellants. The judge left that possibility to the jury, saying “well now having heard all the evidence, you decide whether it really is central to your discussions or has perhaps become somewhat marginalised by the evidence that you have heard as the case has gone along”. That was a proper direction to which no objection was taken.

In our judgment Professor Clarke’s evidence was rightly admitted, was effectively tested, correctly summarised and properly left to the jury. Accordingly the grounds of appeal based on the admission of this evidence must fail.

The membership issue

Both defendants were convicted of offences under section 11 of the Terrorism Act 2000, Habib on counts 2 and 3, Rangzieb on count 4. Section 11(1) is in the following terms:

“Membership:

A person commits an offence if he belongs or professes to belong to a proscribed organisation.”

The issue raised by both defendants is succinctly summarised in the following terms in Habib’s grounds of appeal :

“Whether, generally, and in the circumstances of this case, it was sufficient within the meaning of section 11 of the Terrorism Act 2000, for the trial judge to simply tell the jury that “member” and “belonged to” “are ordinary English words and you should give them their ordinary meaning.”

The membership issue first arose in the course of submissions made on behalf of Habib at the close of the prosecution case. At that stage Habib was charged on count 2 of the indictment with an offence contrary to section 11, the particulars of which were that he “belonged to, or professed to belong to a proscribed organisation, namely Al Qaeda.” The learned judge rejected the submission of no case to answer finding that there was clear evidence that Habib had professed to belong to Al Qaeda, having said so to a reporter for the Sunday Times, and his admission appearing in an article reported in March 2002, and also that there was other evidence capable of establishing that Habib actually belonged to Al Qaeda. He went on to say

“It is submitted that in order to decide count 2, I will need to define to the jury what is meant by membership in section 11 of the 2000 Act. The offence itself under section 11, while described as membership, makes it an offence to belong to or profess to belong to a proscribed organisation. Therefore, the words that I have to consider whether to define are “belonged to”. I am by no means convinced that those words need further elucidation to a jury, but if I were to define them, then a possible definition, in the context of this case, would be that “membership” means sharing a belief in the aims of an organisation and knowing of the means the organisation uses to achieve those aims, joining with others in the organisation in order to achieve those aims.”

Following the rejection of the submission of no case to answer, the indictment was amended to separate the allegation of professing membership (which became count 2) from that of belonging (which became count 3).

The direction given to the jury as to section 11(1) was in the following terms:

“So, in count 3, and in count 4, the prosecution allege that Rangzieb and Habib belonged to Al Qaeda. Al Qaeda was a proscribed organisation throughout the period covered by the two counts so that you do not concern yourselves with that. The prosecution do not have to prove membership throughout the period alleged in the count, any part of the period will suffice. Now the description of the offence is being a member of a terrorist organisation, and the particulars described someone belonging to a proscribed organisation, so those are words you need to consider, member and belonging to, and they are ordinary English words, they are intended to be ordinary English words and you should give them their ordinary meaning they are not technical. You would not perhaps expect as has been said to you that Al Qaeda would actually issue membership cards, or issue a membership list of its members and it would not be necessary for the prosecution to prove that the defendant whose case you are considering has sworn an oath of allegiance or anything like that. Membership does not necessarily involve anything permanent or long term, the question on both of those counts is, are you sure, that the one whose case you are considering, belonged to Al Qaeda, for at least part of the period covered by the count on the indictment, and you take into account all the evidence you have heard in the case.”

The phrase ‘belongs… to’ is not defined in the Act, but some assistance as to its proper meaning is to be derived from section 11(2), which is in the following terms:

“(2)

It is a defence for a person charged with an offence under sub-section (1) to prove –

(a)

that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and

(b)

that he has not taken part in the activities of the organisation at any time while it was proscribed.”

What then amounts to membership of a proscribed organisation? That is likely to depend upon the nature of the organisation in question. Membership of a loose and unstructured organisation may not require any formal steps, whereas a more structured organisation may have an express process by which a person becomes a member. A criminal association is inherently more likely to lack formality than an innocent one. We derive assistance from the analysis by Jack J in Smith Kline Beecham plc v Greig Avery & Others [2009] EWHC 1488 QB as to the nature of the organisation known as the Animal Liberation Front (“ALF”).

“The evidence in this trial establishes that (the ALF) is a name adopted by a group of individuals who carry out illegal acts in purported furtherance of animal liberation. There are some who are at the centre and will from time to time take decisions as to actions to be taken and policy. Others will have an ongoing involvement with those at the centre and in activities in the name of the ALF. Some will have a temporary involvement by carrying out an action undertaken in the name of the ALF. These are, of course, not listing categories but shade into one another. They are used simply to provide a description of those who at any one time should be considered members of the ALF. There is naturally no formal membership, nor any published criteria. Nor is there any formal constitution or structure.”

Professor Clarke’s evidence as to the organisation of Al Qaeda, not the subject of challenge, was in similar terms. Al Qaeda is understood to be a pyramid shaped organisation, with a small inner core of top people numbering 15 – 20 gathered around Bin Laden and Zaba Hiri, generally regarded as being the number two, and beneath it a middle level of about 200 experienced and skilled operators who have received training in the camps, and who carry out the more difficult operations. His evidence as to the lower level was summarised by the learned judge in summing up in the following terms

“The majority exist in a lower level, they claim to be Al Qaeda, they are attracted by the aims of Al Qaeda and they take their ideas to the middle level, who accept them or reject them, give them help with how to do it and if necessary give them funding”.

The judge’s preliminary suggestion, cited above, seems to us to embrace what will frequently be the core elements of membership within the meaning of section 11, namely voluntary and knowing association with others with a view to furthering the aims of the proscribed organisation. We agree with the submission made to us that in some cases it will be necessary to make clear that unilateral sympathy with the aims of an organisation, even coupled with acts designed to promote similar objectives, will, whilst being clear evidence of belonging, not always be sufficient; the jury may need to consider whether there is the necessary element of acceptance or reciprocity which will be involved in belonging. The judge’s suggestion was not, however, ventured as either a necessary or an exhaustive definition.

Was it necessary, on the facts of the case, for the learned judge to embark upon a conceptual analysis of “belonging to” or “membership”, and to give a direction along the lines of his suggested definition? Directions to a jury should be tailored to the issues to which the evidence has given rise.

So far as Rangzieb was concerned, he admitted membership of HuM. The issue in his case on count 4 was the identity of the organisation of which he acknowledged membership, not whether he belonged to that organisation.

As to Habib, there were essentially two strands to the prosecution case on count 3; first his assertion in interview to the Sunday Times in 2002 that he was an Al Qaeda fighter just back from Afghanistan, the assertion that was the subject of count 2. His defence at trial was that he had not told the truth in the interview, and that it had been given in an attempt to secure a substantial payment. In testing that defence the jury were entitled to take account of the remaining evidence in the case. But if they excluded the possibility that he had not told the truth in the interview, then on any view his assertion that he was an Al Qaeda fighter amounted to a claim to membership of that organisation.

Secondly the prosecution relied on the evidence as to Habib’s involvement with Rangzieb. It was the prosecution case that the only inference to be drawn from such evidence was that there was an organisation at work, Rangzieb in a directing role and Habib following his directions, and that that organisation was Al Qaeda. Habib did not contest the factual evidence adduced by the prosecution, but sought to counter the inferences to be drawn from it by advancing innocent explanations for his involvement with Rangzieb, most notably that in making his trip to meet Rangzieb in Dubai in December 2005, he was engaged on a project to make a documentary for television on the subject of the training of British suicide bombers in terrorist training camps in Pakistan, and that he was seeking to take advantage of Rangzieb’s contacts as a Kashmiri freedom fighter. If the jury rejected his evidence or came to the conclusion that they could exclude the possibility that it might be true, then they were left with the inferences as to the true nature of his involvement with Rangzieb to be drawn from the evidence adduced by the prosecution.

Thus in Habib’s case, the central issues for the jury to resolve in relation to count 3 were whether he was, or might have been, lying in his interview with the Sunday Times journalist, and whether the explanation that he gave as to his involvement with Rangzieb was, or might be, true. If the jury excluded the possibility that he was lying in his interview with the Sunday Times, then he was in effect asserting membership of Al Qaeda. If they excluded the possibility that his explanations of his involvement with Rangzieb were true, then the only inference sensibly to be drawn from the evidence was that he was actively and knowingly participating in the activities of a proscribed organisation under the direction of Rangzieb, and that he ‘belonged to’ that organisation within the meaning of section 11(1).

Accordingly in his case, as in the case of Rangzieb, it was not necessary for the learned judge to embark upon an analysis of what could or could not amount to membership of a proscribed organisation. In our judgment the direction that he gave was entirely appropriate.

The territoriality issue

The appellants’ contention that at the material time the offence under section 11 could only be committed by a person who belonged to a proscribed organisation when within the United Kingdom is well founded. That is clear from the judgment of this court in R v Hundal and Dhawal[2004] 2 Cr App R 19. By section 17 of the Terrorism Act 2006, the United Kingdom adopted extra territorial jurisdiction in relation to the section 11 offence. But it did not come into effect until 13 April 2006, and was not retrospective.

This was not appreciated at the trial and in consequence the learned judge did not direct the jury as to the territorial limitation on the commission of the section 11 offence. It is submitted that in the light of the evidence that the appellants were out of the jurisdiction for periods within the span of the indictment, that omission is fatal to the safety of the convictions.

In the case of Habib the prosecution’s case on count 3 was based in particular upon –

Save for the evidence as to the meeting between the appellants in Dubai, the evidence upon which the prosecution relied in support of the allegation that Habib was a member of Al Qaeda, related to his activities within the jurisdiction. The product of the Dubai listening device was relied upon both of itself to demonstrate membership of Al Qaeda, and to provide the context within which the jury could consider the inferences properly to be drawn from his previous and subsequent activities. Either such evidence demonstrated that he was a member of Al Qaeda in the UK, or failed to prove that he was a member. As was submitted by Mr Edis QC, there was no half way house; it was not, and could not sensibly have been suggested that Habib was only a member when out of the jurisdiction on his trips to Pakistan and Dubai.

Thus in his case there was no issue as to the territorial limit of the offence under section 11. That is reinforced by the fact that the trial judge circulated his proposed directions in draft; and the defence did not take the point that it did not contain any reference to the territorial limitation. Whilst that would not be fatal to the argument if valid, it does serve to demonstrate that the point was never in issue.

As to Rangzieb, the prosecution case as to membership of Al Qaeda was based on the evidence about his relationship with Habib, and in particular on the product of the Dubai listening device, and the subsequent actions on the part of Habib and himself in the UK, as to which see the summary at paragraphs 8-11 above.

The defence to count 4 advanced on his behalf was that he was a member of HuM, not Al Qaeda, and that his activities, whether outside the jurisdiction or in the UK in the period December 2005 – 17 January 2006, were in furtherance of the aims of HuM. The issue was, however, exactly the same for his activities inside and outside the jurisdiction. If the jury were satisfied on the evidence viewed as a whole that he was a member of Al Qaeda, then it would follow that they were satisfied that he was a member when in the UK. As in the case of Habib, it was not, and could not sensibly have been suggested that he was only a member of Al Qaeda when out of the jurisdiction. Thus in his case also the territoriality issue did not arise; and again the point was not taken in response to the learned judge’s circulation of his draft directions.

In short, in the case of both appellants territoriality was not a live issue, and in those circumstances the absence of a direction upon it does not affect the safety of the convictions.

Habib contends that his conviction was unsafe on the ground that the learned judge misdirected the jury, alternatively inadequately directed it, on the use that it could make of its conclusions concerning Rangzieb when considering the case against him. This ground of appeal argued before us was formulated in response to observations made by the full court on the leave application on 30 June 2010, at the conclusion of which the court directed that grounds challenging the summing up on the point be filed. The relevant grounds of appeal are now contained in Habib’s consolidated grounds of appeal against conviction and sentence dated 18 July 2010.

The relevant direction by the learned judge was in the following terms (small and obvious errors in transcription do not affect the substance):

“You are trying three defendants and their cases have to be considered separately. It does not follow that because one defendant is guilty that another is, and vice versa. That it is to say that if one defendant is not guilty then another is. But some of your findings in relation to one defendant may affect your verdict on another but they will not be decisive of them. Let me give you an example of that. (Example concerning the co-defendant Mehreen Haji)

… similarly, if you are satisfied that Rangzieb Ahmed was a director of a terrorist organisation then that is capable of being relevant to the case of Habib Ahmed, and your views of what their meetings were about, although it can, it does not necessarily mean that their meetings were concerned with terrorist business. Similarly your verdict on count 3, which is an allegation against Habib of being a member of Al Queada, is capable of being relevant to your decision on count 4 which is an identical charge against Rangzieb and, although by no means decisive of it and vice versa, its relevance will depend on your view of the reasons for the contact between them.”

Habib now contends by his grounds of appeal that in his direction the learned judge erred here for two reasons.

In our judgment the argument advanced by Mr Wood QC on behalf of Habib is misconceived. The relationship between Rangzieb and Habib was at the heart of the case. As Mr Edis QC submitted, where a case depends to a significant extent on evidence about two men who are overheard making plans, the findings of the jury about the status and intentions of one man will inevitably affect their findings about the status of the other. Thus if the jury decided, (as they did in convicting on count 1) that Rangzieb was directing a terrorist organisation when he gave instructions to Habib, that finding was relevant to consideration of whether Habib, who accepted the instructions, belonged to that organisation. Conversely if the jury was satisfied that Habib was a supporter of Al Qaeda, and was willing to assist in its endeavours, then the fact that he was willing to act on instructions from Rangzieb was relevant to the issues of whether Rangzieb, in giving such instructions, was directing a terrorist organisation, and if so whether that organisation was Al Qaeda.

We are satisfied that the direction given by the learned judge was entirely appropriate. He made it clear that findings of fact in relation to one defendant might affect the verdict on another, but would not be decisive. He gave examples which clearly demonstrated the manner in which their findings of fact in relation to one defendant could be relevant to the case against the other. The argument that membership of a terrorist organisation by one accused was not relevant to the issue of membership of that organisation by another is unsustainable in this case.

Convictions: conclusion.

It follows that all grounds of appeal against conviction fail. These convictions by the jury are safe.

Sentence: Habib

Habib renews his application for leave to appeal against sentence, after refusal by the single judge.

He was convicted and sentenced as follows:

The principal offences were clearly those charged in counts 3 and 6. The sentence of 9 years on count 3 (membership) was the same as that passed on Rangzieb for the like offence (count 4). If those two convictions had stood alone there might have been substance in the criticism that there should have been a distinction made between them. But they did not. Rangzieb’s significantly greater role was marked by a sentence of life imprisonment on the count of directing the activities of Al Qaeda (count 1) and the nine years on his count 4 was simply a consecutive term which added nothing to the total. Habib’s overall responsibility was assessed by the judge and marked by a total of 10 years. That amply discriminated between their different roles.

For the same reasons, the judge was well within the proper bracket of sentencing to pass a total of 9 years for the two principal offences committed by Habib. It is true that that term was only one year below the maximum for count 6, but the judge was rightly concerned with the total on both charges, which did not stand or fall together. We are unable to agree that the judge was wrong to assess him as a committed member of Al Qaeda who was willing to martyr himself by way of suicide bombing or otherwise. The judge had heard a large amount of evidence emanating from Habib himself, both via his public assertions and his private but recorded conversations. He also saw and heard him for himself when he gave evidence in the trial. His assessment cannot be impugned.

Nor do we agree that it was wrong in principle to pass a consecutive sentence in respect of count 10. Once again, the significant matter is the total sentence, not the manner in which it is made up.

In one respect only do we consider that the sentence upon Habib calls for adjustment. The judge duly directed, pursuant to section 240 Criminal Justice Act 2003, that 820 days spent in custody should count towards the sentence. In fact the defendant had additionally spent an initial 28 days in custody in police hands before charge, authorised by the magistrates under Schedule 8, paragraph 29 Terrorism Act 2000, but this was not mentioned to the judge. Whether that time strictly falls within section 240 or not, it is plainly directly analogous and it ought to be deducted from his sentence. We vary the sentence on count 10 to one of twelve months less 28 days. It will remain consecutive to the other sentences. To that extent, but to that extent only, the application for leave to appeal is granted and the appeal allowed.