Ali, R v

LORD JUSTICE HOLROYDE: This is an application for an extension of time in which to seek leave to appeal against rulings made by the Recorder of London, His Honour Judge Hilliard QC, at a preparatory hearing. Section 37 of the Criminal Procedure and Investigations Act 1996 has the effect that, unless the court otherwise orders, there may be no written report of this hearing, save for certain prescribed particulars, until after the conclusion of the trial. At the conclusion of this judgment we will hear submissions as to whether any other order should be made.

The applicant, Mr Khalid Ali (to whom we shall refer for convenience as "the defendant") is charged on the indictment with three offences. In counts 1 and 2 he is charged with offences of possession of an explosive substance with intent contrary to section 3(1)(b) of the Explosive Substances Act 1883. The particulars of count 1 allege that on or before 28 January 2012 the defendant:

Section 29(1B)of the Criminal Procedure and Investigations Act 1996 requires that a preparatory hearing must be held in every case in which at least one of the offences charged is a terrorism offence. The initial proceedings against this defendant in the Crown Court were conducted on the basis that the timetable of proceedings would necessarily include a preparatory hearing in advance of the trial date. In the event, the preparatory hearing took place on 2 March 2018. The trial is fixed to begin on 29 May 2018.

In advance of the preparatory hearing, the prosecution had served written notice of application for leave to adduce hearsay evidence and bad character evidence. The former application was largely uncontroversial and we need say no more about it. The latter application in essence sought leave to treat the evidence relating to counts 1 and 2 as bad character evidence admissible in the trial of count 3, and the evidence relating to count 3 as bad character evidence admissible in the trial of counts 1 and 2. In their written response, those representing the defendant objected to joinder and to the introduction of bad character evidence and applied for counts 1 and 2 to be tried separately from count 3.

By sections 31(1) and (3) of the Criminal Procedure and Investigations Act 1996 the judge conducting the preparatory hearing may make a ruling as to:

It is sufficient for present purposes for us to outline the prosecution case against the defendant very briefly. The defendant came to this country with his family in 1992 when he was two years old. He left his family home in north London in the summer of 2011 and had no further contact with his family until November 2016. On dates in January and July 2012 US forces in Afghanistan found two separate large caches of the component parts of improvised explosive devices. Fingerprint evidence links the defendant to items in each of those caches. In counts 1 and 2 the prosecution allege that the defendant was involved in making bombs to be used to kill British and Allied soldiers engaged against the Taliban. It should be noted that in 2012 Section 5 of the Terrorism Act 2006 did not have the extra-territorial scope which was later introduced by a statutory amendment in March 2015.

In November 2016 the defendant flew to this country from Istanbul. He was detained and questioned before being allowed to proceed to his family home. He gave an account of his movements during the time he had spent abroad and later added to that account when further questioned later in November. He described travelling in Pakistan, Iran and Turkey but said nothing about visiting Afghanistan and denied any association with any terrorist group.

On 26 April 2017 the defendant bought a mobile phone. It is alleged that when doing so he asked the shop assistant questions about whether the phone handset or a SIM card placed into it would be traceable. Later that day the defendant was seen to deposit into a wheelie bin a bag which was found to contain the packaging for five kitchen knives and one knife sharpener. A short time later the defendant's mother contacted the police to report that she had found four kitchen knives and a sharpener in the defendant's bedroom.

Later that morning the defendant purchased a rucksack and three more kitchen knives. He used the membership PIN number of an acquaintance to enter a gym, where police later found the packaging of the newly purchased knives. That afternoon the defendant travelled into central London. He threw away a mobile phone, which was later recovered. He then approached Parliament Square, where he was detained by police. He was carrying the three kitchen knives which he had bought that morning, two in the outer pockets of his jacket and the largest in his front waistband. He said that he was carrying them for protection and said that he did not intend to attack Parliament, the police or the public. In count 3 the prosecution allege that he was not telling the truth about that, and that he intended to use the knives to commit an act of terrorism, in particular to kill any police officer who tried to stop him.

In a series of interviews under caution the defendant said that he had gone to Westminster in order to meet officials and deliver a message to them. The message was that the West should leave the lands of the Muslims, should return Palestine to the Muslims and should hand back any prisoners of war. He said that he considered himself a Mujahid, a term which he defined, and that his message came from the Mujahideen. He accepted that he had bought the various kitchen knives but again said he had them for self defence.

In later interviews the police disclosed to the defendant the evidence linking him to the caches found in Afghanistan. He accepted he had been in Afghanistan, had assisted in making detonators, and had handled the component parts of IEDs which bore his fingerprints and handwriting. He said that he had been a Mujahid allied with the Taliban and had been training and fighting against Western troops. He denied that he had returned to this country with an intention to carry out an attack. He later said he had returned to this country with the message that, "We are Mujahideen. UK is next on the list."

In his defence statement filed in the Crown Court the defendant has accepted his connection to component parts of IEDs but has said that he was involved with those component parts under duress whilst being held captive by the Taliban in Pakistan. He also said in the defence statement that he was subsequently released by his captors and instructed to communicate a message to the UK authorities regarding the UK's policy in the Middle East. In summary, therefore, it appears that the principal issues at the trial will relate to whether in or before 2012 the defendant voluntarily engaged in bomb-making with intent to endanger life, and whether in April 2017 he was carrying knives in Westminster with the intention of committing acts of terrorism involving the inflicting of serious injury or the endangering of life.

We turn next to summarise the submissions made to the learned Recorder at the preparatory hearing, which have been renewed and developed before this court.

The prosecution submitted to the Recorder that pursuant to section 101(1)(d) of the Criminal Justice Act 2003 the evidence relating to counts 1 and 2 was admissible in relation to count 3 and vice versa. They argued for cross-admissibility not on the basis that the evidence establishes a propensity, but rather on the basis that each of the allegations is capable of making it more likely that the other allegation is true. The prosecution submitted that the three counts were properly joined in the indictment. In pointing to the features which establish a nexus between counts 1 and 2 and count 3, and which therefore make the three charges a series of offences of a similar character, the prosecution placed reliance on what the defendant himself had said in his various interviews, in particular because he linked the message which he claimed he was seeking to deliver in 2017 to his previous activities in Afghanistan and his views that the West should not have been in Muslim lands.

The prosecution argued that if the jury were satisfied that the defendant had engaged in military activity with the Taliban against coalition forces, they would be entitled to conclude that such past conduct motivated him to commit the offence charged in count 3 against other “agents of the state”. They further argued that evidence relating to counts 1 and 2 was admissible in relation to count 3 on the basis that it was a most unlikely coincidence that a man who had previously engaged in terrorist activity had an innocent non-terrorist reason for carrying a number of knives in the vicinity of Parliament. The prosecution submitted that the cross-admissibility of the evidence was in itself a sufficient foundation for the joinder of all counts in the same indictment. In any event, and additionally, there was a sufficient nexus between the three counts for them to constitute a series. That being so, there was no good reason why counts 1 and 2 should be tried separately from count 3.

The defence submissions opposing joinder emphasised the factual dissimilarity of the conduct alleged in counts 1 and 2 and the conduct alleged in count 3, and the distance in time and geography between the acts giving rise to the charges. The defence submitted that the three offences did not constitute a series of offences of a similar character, that there was no similarity of evidence sufficient to establish a nexus, and that any common element of an intention to endanger life was too broad a concept to establish a nexus.

As to cross-admissibility, the defence argued that the evidence did not establish any propensity and did not show any repeated conduct of a similar kind. The elements of the offences charged were wholly different. Evidence that the defendant had handled explosives in Afghanistan in 2012 did not make it any more likely that he had a terrorist intent when carrying knives in Westminster in 2017. Nor could the defendant's alleged conduct in 2017 legitimately assist the prosecution to prove their allegations in counts 1 and 2.

In the alternative, the defence submitted that even if the counts could properly be joined in the indictment, counts 1 and 2 should nonetheless be tried separately from count 3 because of the inescapable and severe prejudice which would be caused to the defendant if all charges were tried together, and which could not be avoided by any judicial directions to the jury. In a similar way, by reference to section 101(3) of the Criminal Justice Act 2003 any evidence which might be found to be properly cross-admissible should be excluded on grounds of prejudice.

We turn next to the legal framework relevant to the learned Recorder's rulings. The joinder of offences is governed by Rule 3.21(4) of the Criminal Procedure Rules, and the power to order severance of counts properly joined in an indictment is governed by section 5(3) of the Indictments Act 1915, which provides:

In determining this application, we have to decide whether the learned Recorder's application of that rule was arguably wrong in law. We note, however, that the rule and the corresponding provisions in the Criminal Practice Direction have very recently been amended with effect from 2 April 2018. Rule 3.21(4) now reads as follows:

Paragraph 10A.3 of the Criminal Practice Direction makes clear that the effect of that amendment is to abolish the old rule that charges for more than one offence may only be included in the same indictment if founded on the same facts or if they form or are a part of a series of offences of the same or a similar character. Instead, the fact that an indictment includes a charge or charges which do not meet those criteria may provide a reason for the court to exercise its power to order separate trials. The Practice Direction states:

The parties are agreed, and we agree, that in the particular circumstances of this case the outcome of this hearing would be the same under the new rule as it would be under the old. Mr Altman QC for the prosecution submits, however, that the amendment to the rule reflects a current trend away from outdated technicality and in favour of a focus upon the fairness of the trial.

In Kray [1970] 1 QB 125, Lord Justice Widgery said at page 130:

In the recent case of Williams (Malachi) [2017] 4 WLR 93 the court noted the need to bear in mind that Kray was decided at a time when the laws of evidence, in particular in relation to evidence of bad character, were very different from those which now pertain. At paragraph 19 of Williams (Malachi) the Lord Chief Justice said of the passage which we have just quoted:

In Ludlow v The Metropolitan Police Commissioner [1970] 1 AC 29 Lord Pearson, with whom the other Law Lords agreed, said that both the law and the facts must be taken into account in deciding whether offences are similar or dissimilar in character. He said:

In Williams (Malachi) Lord Thomas, Lord Chief Justice, said at paragraph 21 that:

In their submissions as to the admissibility of bad character evidence, the prosecution relied on Freeman and Crawford [2009] 1 WLR 2723 and on McAllister [2009] 1 Cr App R 10. Each of those cases may be regarded as reflecting a principle that section 101(1)(d) of the Criminal Justice Act 2003 is not confined to issues of propensity. Evidence relating to one allegation may be capable of making it more likely that another allegation is true, because of the similar nature of the evidence in each case or because for some other reason - such as the unlikelihood of coincidence - the evidence is in itself capable of showing that it is more likely that the offence charged in another count was committed or that the defendant committed it. At paragraph 14 of McAllister Moses LJ put the point in this way:

The learned Recorder in his ruling at the preparatory hearing concluded that there was cross-admissibility of the evidence relating to counts 1 and 2 and the evidence relating to count 3. Violent acts leading to death lay at the heart of all three allegations, and the concept of endangering life was a legal ingredient of each charge. Moreover, it would be open to a jury to conclude from the defendant's interviews that his behaviour between 2011 and 2017 was "one overarching mission", and that on his own account the defendant's activities since 2011 had been in pursuance of the first part of his message, namely trying to get the West out of Muslim lands.

The Recorder found that the charges alleged a series of offences of a similar character having regard to the law and to the facts. He held that a jury would be entitled to look at the evidence relating to the defendant's behaviour in 2017 when assessing his defence that he acted under duress in 2012. Similarly, if the jury were persuaded that the defendant had voluntarily intended to endanger life in 2012, it was permissible for the jury to take that into account when deciding the defendant's intention in 2017. Finally, the learned Recorder concluded that, far from it being a case in which severance should be ordered, it was in fact in the interests of justice that the same jury should hear all the evidence.

Mr Trollope QC and Mr Worden on behalf of the defendant submit to this court that the learned Recorder was wrong to reach those conclusions. They repeat the arguments which were advanced below, and add reference to passages in Williams (Malachi), which was not cited to the Recorder. Mr Trollope particularly emphasises the submission that there is no factual similarity between the three offences. He argues that it would be superficial to permit a jury simply to regard the defendant as a man who was a terrorist in Afghanistan and must therefore also have been a terrorist in London. He submits that any principle of cross-admissibility required at least some element of factual similarity.

For the prosecution, Mr Altman QC and Miss Morgan argue that the judge's rulings were correct. They too repeat the submissions advanced below. Mr Altman submits that in relation to cross-admissibility, probative value is the test and the test is not confined to cases of factual similarity.

We have reflected on the respective submissions. We begin by considering the important procedural issue which arises in relation to this application.

Section 35 of the Criminal Procedure and Investigations Act 1996, so far as is material for present purposes, provides as follows:

In this case the learned judge gave his oral ruling on the issues of joinder, severance and cross-admissibility at the conclusion of the hearing on Friday 2 March. Reference had been made in the course of the preparatory hearing to an issue relating to section 62 of the Terrorism Act. In an email sent to the parties on Monday 5 March the learned Recorder indicated that he would want to express his view about the section 62 issue "at the end of my ruling and as part of the preparatory hearing."

We are told by defence counsel that there was a misunderstanding amongst the defence team as to whether time to appeal against the rulings had begun to run on 2 March, or would not begin to run until after the Recorder had ruled on the section 62 point. On 12 March, before the latter ruling was given, the defendant's representatives gave notice of their wish to appeal against the rulings of 2 March and submitted a notice of application dated to show that it had in fact been drafted on 4 March. Mr Trollope frankly and properly conceded that a mistake had been made in thinking that time might not begin to run until after the Recorder had ruled on the section 62 point.

When the learned Recorder received the appeal notice he took the view that the appeal had been brought out of time. He doubted whether he as a Crown Court judge had power to extend time for this purpose after the relevant time limit had expired; but in any event, even if he had the power, he declined to exercise it in this case, taking the view that "the time limits are important in these interlocutory appeals" and that it was clear from his ruling of 2 March that time would begin to run that day for the purposes of any appeal. He therefore refused to extend time and so the application for leave to appeal fell away.

The applications for an extension of time and for leave to appeal are therefore now renewed to this court. The time limit for making an application to this court was itself exceeded as a necessary consequence of the delay in making the application to the court below.

We do not think it necessary in the circumstances of this case to give detailed consideration to the issue raised by the Recorder as to the extent of any power to extend time for this purpose after the expiration of the time limit. The point has not been fully argued before us and in any event, as we have already noted, the learned Recorder went on to indicate plainly that he would refuse the application to extend time even if he had the power to grant it. In our judgment he was entitled and correct to conclude that the application should be refused.

In fixing the timetable for proceedings in a case in which a preparatory hearing is necessary, the court must take account of the custody time limits, of the nature and extent of the work which is necessary by way of preparation on all sides, of the need to allow a sufficient period of time between preparatory hearing and trial for any appeal which may be brought against a preparatory ruling to be heard and determined, and of the availability of a judge authorised to hear the case concerned. It follows that the timetable has to be set with considerable care and that there is unlikely to be much slack in it.

In the present case, with all respect to counsel, we regret that we are not impressed by the explanation for the failure to issue the appeal notice in time. It seems to us that the terms of the Recorder's oral judgment made clear that he was giving his definitive ruling on the relevant issues, which would not be affected by any later additional ruling on the section 62 point. If there was uncertainty as to when time began to run, it would have been far better to seek any necessary extension prospectively rather than to allow time to go by. In those circumstances we do not think that the learned Recorder can in any way be criticised for refusing to grant an extension of time.

In making the application for an extension of time to this court, Mr Trollope understandably emphasises that the delay stemming from a genuine error was of short duration, that it has not affected the timing of this hearing, that the hearing of the appeal can therefore be concluded without jeopardising the trial date and that no prejudice would be caused to the prosecution if the extension of time were granted. We are not persuaded by those submissions. As we have indicated, the time limit is important and will not be extended without good cause. In the circumstances of this case, we do not accept that good cause exists merely because the delay was only of a few days and has not prevented this court from hearing this application some weeks before the trial date.

We therefore turn to consider whether the merits of the grounds of appeal can lend any support to the application for an extension of time. In the light of the cautionary note expressed in Williams (Malachi) we think it appropriate to look first at the issue as to joinder and to begin by considering whether the Recorder was correct to find the necessary nexus between the counts, quite apart from any question of cross-admissibility of evidence.

In our judgment he plainly was correct. The allegations in counts 1 and 2 are that the defendant voluntarily engaged in acts preparatory to taking murderous action against Western forces, and did so in pursuit of an ideological cause which viewed the West as having no right to interfere in the Muslim lands. The charges involve the legal ingredient of acts done with intent to endanger life. The allegation in count 3 is that the defendant voluntarily engaged in acts preparatory to taking murderous action against any person, in particular any police officer, who tried to prevent him from conveying to officials the message that the West should leave the Muslim lands. The charge involves the legal ingredient of an intention to commit acts of terrorism, by definition including an intention to cause serious injury or to endanger life, and acts in preparation for giving effect to that intention. There is in our view a close similarity in both the factual and legal aspects of all three charges. That similarity is underlined by the simple proposition that, but for the timing of the statutory amendment as to extraterritorial jurisdiction, the conduct alleged in counts 1 and 2 could also have been charged under section 5 of the 2006 Act. There are of course factual dissimilarities, as Mr Trollope has carefully pointed out. However, the separation in time and place of the events of 2012 and 2017, and the different weapons by which it is alleged the defendant intended to kill, do not even arguably lead to the conclusion that the judge was wrong to find that the charges constitute a series of offences of a similar character. On the contrary, the Recorder was in our view plainly correct to point out that a jury could properly find the defendant had acted throughout with an intention to kill or to endanger life in pursuance of his view that the West should be removed from the Muslim lands. The three offences alleged in the indictment all share that wider characteristic. It follows that we are unable to accept the submission that there is no similarity beyond a broad element of an intent to endanger life.

We consider next the question of cross-admissibility of evidence. In our judgment the learned Recorder was equally clearly correct to rule as he did that the evidence in relation to counts 1 and 2 was admissible as bad character evidence in relation to count 3 and vice versa. The prosecution did not seek to argue that the evidence was cross-admissible on the basis that it was capable of showing a relevant propensity, though it seems to us that they might legitimately have done so. Rather, the prosecution argued their application on the basis that the evidence in relation to one charge, or pair of charges, is in itself admissible in relation to the other allegation because it makes it more likely that the other allegation is correct.

In our judgment the Recorder was correct to accept that argument. We are not able to accept Mr Trollope's submission that there must be a significant element of factual similarity before evidence on one count can have the necessary probative value in relation to the other count. Much depends on the true issues in the case. Here, in considering in relation to counts 1 and 2 whether the defendant was acting voluntarily with the requisite intent, a jury would in our view be entitled to take into account that some years later he was acting in the manner alleged in 2017 and was explaining his motives in the terms recorded in the interviews. Conversely, when considering the defendant's intent in 2017, a jury would be entitled to take into account the evidence relating to his acts in 2012. We would add that even if counts 1 and 2 were to be tried separately from count 3, and the first trial were to result in a conviction, that conviction would in our view be admissible in evidence at the second trial.

We turn finally to the issue of severance. It was for the Recorder to decide, in accordance with the provisions which we have cited, whether count 3 should be tried separately from counts 1 and 2. In exercising his discretion in that regard he plainly gave careful consideration to the submissions made as to the inescapable prejudice which the defendant would suffer in a jury trial. It is impossible to say that the Recorder failed to consider all relevant matters, and he was entitled to expect that a jury properly directed would obey the judge's directions.

In order to succeed in an appeal against his ruling, this court would have to conclude that the Recorder exercised his discretion in a way which was not open to him. It is sufficient to say that in our judgment there is no arguable basis on which that conclusion could be reached. We do, however, go further and say that in our view the Recorder was plainly correct to exercise his discretion as he did. It would have been contrary to the interests of justice to order separate trials in the circumstances of this case.

We therefore conclude that there would be no arguable ground of appeal against the Recorder's rulings. It follows that no purpose would be served by our granting an extension of time, even if we were persuaded that it would be appropriate to do so. We therefore refuse all applications.

Now, gentlemen, that concludes the judgment. May I return to the issue of reporting restrictions, which I indicated we would come to. The effect of section 37 of the 1996 Act is that nothing may be reported of this hearing until the conclusion of the trial in the Crown Court, save for the very limited particulars set out in subsection (9) of section 37 such as the identity of the court, the name of the judge, the name of the accused, the offences charged, et cetera. But those statutory provisions leave it open to the court to make a contrary order in a particular case. Does either of you invite the court to make any contrary order? Mr Trollope?

MR TROLLOPE: My Lord, no.

MR ALTMAN: No, thank you, my Lord.

LORD JUSTICE HOLROYDE: I don't know, are the media represented at all?

MR TROLLOPE: I think somebody came and went.

A LAW REPORTER: I'm a law reporter.

LORD JUSTICE HOLROYDE: Oh, yes. Do you want to say anything about reporting this?

A LAW REPORTER: Well, it would be obviously helpful to be able to report this as quickly as possible.

LORD JUSTICE HOLROYDE: Yes.

A LAW REPORTER: But obviously if there are sensitive matters at stake, we realise -- we don't expect the court to necessarily accede to our request.

LORD JUSTICE HOLROYDE: No. Well, one of the reasons why I thought it was probably best to deal with this at the end of the hearing rather than the beginning was because it did occur to me that as I gave the judgment, a view might be formed as to the practicability of reporting the legal aspects without reference to facts which should not properly be disclosed in advance of the trial.

Speaking entirely for myself, I think it would be a tall order to extract from the judgment much of a report which didn't trespass into areas of fact. But we're very willing to listen to argument if you want to try and persuade us to the contrary.

A LAW REPORTER: Well, my Lord, probably the only interest we would have in the case would be to report the procedural point --

LORD JUSTICE HOLROYDE: Yes.

A LAW REPORTER: -- which could be plucked out of the rest of the judgment and could more or less stand alone until the fuller facts could be added to the report.

LORD JUSTICE HOLROYDE: Yes. And would there be -- do you suggest a strong public interest in being able to report that before, what, about two months' time?

A LAW REPORTER: No, not particularly. It would just bring it to the attention of practitioners.

LORD JUSTICE HOLROYDE: Yes, we understand that. Thank you for raising that.

Mr Altman, do you want to say anything about that?

MR ALTMAN: Just two things. As your Lordship has already observed, the trial is but five or six weeks away with an estimate of three to four weeks and therefore by the end of June it ought to be reportable assuming there are verdicts. Secondly, and in any event as I pointed out to your Lordship and as I think the Recorder made clear in the course of his ruling, the directions he will give on cross-admissibility have not yet been refined --

LORD JUSTICE HOLROYDE: No, quite.

MR ALTMAN: -- and therefore any report for the issue of cross-admissibility may itself prejudice.

LORD JUSTICE HOLROYDE: Yes.

MR TROLLOPE: I have nothing to add, my Lord.

LORD JUSTICE HOLROYDE: No. Very well, we will just rise to consider this. Thank you all.

LORD JUSTICE HOLROYDE: Yes, we are grateful for the assistance we have had. We remain of the view that in the circumstances of this case it would be exceptionally difficult to extract even a note of the ruling in relation to the extension of time point without necessarily referring to factual aspects of the case which would be capable of giving rise to a risk of prejudice to the fairness of the forthcoming trial. That trial is only a few weeks away and we conclude that in all the circumstances the reporting restrictions contained in section 37 of the 1996 Act must apply, with the result that nothing may be reported until the conclusion of the trial other than is permitted by section 37(9). Thank you all.