COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
MR JUSTICE SAUNDERS
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OWEN
MRS JUSTICE THIRLWALL DBE
| Rangzieb Ahmed and Habib Ahmed
|- and -
Mr J Wood QC and Mr R Littler (instructed by Tuckers) for the Appellant
Mr A Edis QC and Ms B Cheema (instructed by Crown Prosecution Service) for the Crown
Hearing dates : 30th November, 1st,2nd,3rd, December 2010
Crown Copyright ©
Lord Justice Hughes
This is a judgment to which we have all contributed.
i. that the learned judge erred in admitting the evidence of Professor Clarke as expert evidence,
ii that in summing up the learned judge
a. failed to give any or any adequate direction as to the meaning of 'belong to' in section 11(1) of the Terrorism Act (counts 3 and 4) – "the Membership Issue", and
b. failed to direct the jury as to the territorial nature of the offence under section 11(1) – "the Territoriality Issue".
Habib advances the further ground that the learned judge misdirected the jury as to the use that they could make, when considering the case against him, of their conclusions concerning Rangzieb – "the Cross-Admissibility issue".
The application to stay
"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."
Accordingly, applying the test stated, he refused the application for a stay of the prosecution.
a) the UK authorities were complicit in an unlawful rendition of Rangzieb to this country; what occurred under the form of deportation was in fact a disguised extradition; and/or
b) the prosecution was tainted by torture in which the UK authorities were complicit.
i) The prohibition upon torture is an entrenched part of public international law binding all nations.
ii) This international law prohibition extends not only to the practice of torture by a State, but also to complicity by State A in torture by State B.
iii) Such complicity is demonstrated (inter alia) where State A has any settled practice of information- or intelligence-sharing with State B which is known or believed to use torture.
iv) Wherever such complicity by settled practice is demonstrated and information has been shared in respect of a man prosecuted in England who has been interrogated in State B under conditions involving torture, there is a sufficient connection between the complicity and the trial for it to be right to stay the prosecution, whether or not the trial will involve any use of the product of any interrogation under torture, and whether or not any information derived from the torture is to be used in, or otherwise underlies, the trial.
v) The judge therefore applied the wrong test; had he applied the correct one, he ought to have stayed this prosecution.
"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…"
"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."
"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."
Lord Hope adverted, in a similar passage of reasoning at paragraph  to the existence in the ECHR, alongside the prohibition of torture in Article 3, of the right to life enshrined in Article 2; the duty of the State is to protect the right to life of all those present within its shores who would be at risk from acts of terrorism. Lord Brown, at paragraph  said this:
"Generally speaking, it is accepted that the executive may make use of all information it acquires: both coerced statements and whatever fruits they are found to bear. Not merely, indeed, is the executive entitled to make use of this information; to my mind it is bound to do so. It has a prime responsibility tl safeguard the security of the state and it would be failing in its duty if it ignores whatever it may learn of fails to follow it up. Of course it must do nothing to promote torture. It must not enlist torturers to its aid (rendition being perhaps the most extreme example of this). But nor need it sever relations even with those states whose interrogation practices are of most concern. So far as the courts are concerned, however, the position is different…. " (emphasis supplied)
"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. "
Extraordinary rendition for the purposes of outsourcing torture would of course amount to secondary participation in torture on ordinary common law principles. Those principles may or may not have sufficient general acceptance to represent the law of nations, but it is for the wider proposition that no even passive use of the product of torture is lawful that Mr Bennathan relies on this passage. The authority cited for the last sentence quoted above is the following extract from the (dissenting) judgment of Neuberger LJ, as he then was, in A (No 2) when the case was in the Court of Appeal:
"… even by adopting the fruits of torture, a democratic State is weakening its case against terrorists, by adopting their methods, thereby losing the moral high ground an open democratic society enjoys."
The force of the moral argument there succinctly enunciated is not to be doubted, but it leaves unanswered the question when in law material which might be associated with torture, or with a regime which might use such methods, is to be ignored, never mind the question when a State is guilty as a secondary party of torture committed by another State without its assistance or encouragement. The moral argument may well have underlain the subsequent authoritative decision of the House of Lords that the product of torture may not be used in a court to make a case against an individual. But given that that decision clearly recognised the legality of limited use of the product of torture out of court and defined the legal line which must be trodden, and that it was available long before the Special Rapporteur's report, it is unlikely that he can have meant his last sentence quoted to be a statement of existing law and it is clear that it does not.
"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 torture or 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."
These propositions would extend guilt of torture by secondary participation or complicity to passive receipt of information even where it was not the product of torture, if there was a real risk that the detainee might be tortured, and it would also extend it to information derived from someone arbitrarily detained, without recourse to judicial review, even where there was no question of torture.
i) the fact that certain names on GS/167 were of people who were known to hold particular positions within Al Qaeda
ii) well known practices of Al Qaeda and their methods
iii) details about the connections between Al Qaeda and various parts of the world.
He refused to admit evidence which related to Rangzieb himself, and those parts of the statements in which Professor Clarke offered an opinion as to what inferences should be drawn from his evidence.
i) the structure of Al Qaeda;
ii) reasons to use the route out of Pakistan via China;
iii) the use of South Africa as a transit point for Al Qaeda operatives;
iv) the use by Al Qaeda operatives of email dead letter drops and invisible ink;
v) information about the people whose names appeared on GS/167;
vi) that membership of HuM did not preclude membership of Al Qaeda;
vii) the activities of HuM (as to this latter category the jury was also provided with a print out of the organisation's current website).
i) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area; and
ii) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of such and a special acquaintance with it by the witness would render his opinion of assistance to the court.
The second limb of the test is whether the witness has sufficient knowledge and experience to justify having his or her opinion placed before the jury as an expert one on the relevant matter.
"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".
However, the judge approached the issue, as asked, on the basis of Bonython, which cannot have occasioned any damage to the defendants.
i) The evidence was not sufficiently cogent to be capable of supporting the conviction, nor was it based on a body of accepted wisdom.
ii) The information on which Professor Clarke based his conclusions was entirely inadmissible hearsay.
iii) Some of it was secret and thus an expert was being used to put before the jury information which was not otherwise admissible.
iv) Professor Clarke's method was inadequate, as demonstrated at trial and subsequently.
There is inevitably a degree of overlap between these arguments and we deal with them compendiously.
"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 judge observed "it has to be said that primary sources to a historian would undoubtedly include contemporary newspaper reports." We agree. Professor Clarke's methods were recounted by the judge:
"he told me he employed normal academic disciplines. He described them as triangulation, context and validation. Triangulation means looking for 2 or 3 other source versions of the event being investigated or the information being relied on. Context means considering any version of events against the known context at the time. Validation means comparing notes with other academics."
"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."
"I am satisfied that Professor Clarke is a well respected member of his academic discipline who on the face of it applies proper academic rigour to it. I am also satisfied that there are a number of experts who operate in the same field".
i) He had said in his report that Shah Mehboob Elahi had received military honours from President Musharraf. He based that assertion on one internet download. The defence put it to him that Shah Mehboob Elahi had never been in the Pakistani military and that the surnames in the list of the recipients of honours from ex President Musharraf all had the prefix SM. Professor Clarke conceded that he may be in error. The appellants say that it is evidence of a lack of attention to detail in Professor Clarke's approach. We agree. It is to be noted, however, that he had not given evidence about this in chief; it was elicited in cross examination for the purpose of being refuted. No evidence was called on this issue, no doubt because it went only to credit. The demonstration was there for the jury to assess.
ii) In the first statement in which he dealt with HuM Professor Clarke said that its Emir, Fazlur Rahman Khalil, had signed a fatwa issued by Osama Bin Laden and others in 1998. He repeated that assertion in evidence; it was based on a number of public sources. The inference to be drawn therefore was that HuM and Al Qaeda had a common purpose. A document, said to be a copy of the fatwa, was put to Professor Clarke. It had been extracted from the source material he had provided. It should not therefore have come as a surprise to him, had he looked at it previously. It was pointed out to him that it was signed by Fazlur Rahman of the Jihad movement of Bangladesh, and not by the Emir of HuM. He wondered first of all whether there was another, different copy of the fatwa (there was not). He then said that he had been told that the Emir had "signed up" to the fatwa, ie he had told people that he had supported it. Since he was not prepared to name his source for that observation (other than to say it had come from a journalist) he indicated that he would not seek to rely on it. We agree that this response was unsatisfactory, and it can only have appeared so to the jury. It may have been the result of producing something at speed in response to the change in Rangzieb's case but that does not excuse, we think, a rather basic error. At the very least it undermines Professor Clarke's assertions as to the rigour of his academic method.
iii) One of Professor Clarke's website sources showed the position of a training camp to be in a different position from where Professor Clarke had said it was.
"if you decide that the information is inherently unreliable, then do not base any decision you make solely on the evidence of Professor Clarke."
The membership issue
A person commits an offence if he belongs or professes to belong to a proscribed organisation."
"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."
"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."
"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."
"(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."
There is no reason to think that the phrase 'belongs to' in sub-section 11(1) and the word 'member' in 11(2) are meant to embrace different facts. Secondly it is clear from the statutory defence afforded by sub-section 11(2) that a person can be a member without taking part in the activities of the organisation, although to state the obvious, participation in such activities may be a clear indication of membership.
"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."
"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".
He also described Al Qaeda as a franchise organisation, again evidence that was not the subject of challenge.
The territoriality issue
i) the press interview in 2002, in the UK, in which he professed to be a member of Al Qaeda. There was evidence from an e-mail found on Habib's computer that he had been tasked to do the interview and that he did not need detailed instructions about what to say. Some of what was said in the course of the interview was true, some was not.
ii) his internet searching, in the UK, for information relating to hydrogen peroxide, a substance likely to be of use to a terrorist.
iii) his receipt, in the UK, on 11 December 2005 of a telephone call from Rangzieb, following which he started to acquire items, boots and a SIM card, for him.
iv) that he then flew to Dubai where he met Rangzieb, had discussions with him as to how Rangzieb should proceed and agreed to carry the diaries back into the UK on his behalf, knowing them to contain information that he believed to concern Al Qaeda. The diaries were taken to his house in Manchester (see paragraphs 8-11 above).
The cross admissibility issue
"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."
i) Membership of a terrorist organisation by one accused is not by itself relevant to the issue of the membership of that organisation by another. To be relevant, the second would have to know of the first's membership. Moreover, that Rangzieb be a member of HuM cannot prove membership by Habib of Al Qaeda (count 3) or that his possession of articles is for a terrorist purpose (count 6). Even if knowledge by HA of the membership of RA of either HuM or Al Qaeda were established, it is submitted that this fact would have no relevance as to the issue of whether Habib was also proved to be a member, or to be possessing articles for a terrorist purpose.
ii) That Rangzieb is proved to be a director of a terrorist organisation does not tend to prove that Habib is a member of that organisation (count 3), or that his possession of articles given to him by Rangzieb was for a terrorist purpose (count 6).
In the alternative it is submitted that the directions were inadequate, and that careful guidance should have been given to the jury as to the exact relevance of Rangzieb's convictions to the case against Habib, and as to the use that the jury could properly make of such evidence.
i) on count 2 of professing membership of Al Qaeda, two years;
ii) on count 3 of membership of Al Qaeda, nine years;
iii) on count 6 of possession of the diaries for a purpose connected with the commission, preparation or instigation of an act of terrorism (section 57 Terrorism Act 2000), nine years;
iv) on count 10 of possession on his computer of information relating to a terrorist bombing in London with detail of chemical explosives, being information likely to be of use to a terrorist (section 58 Terrorism Act 2000), twelve months.
The first three sentences were made concurrent with one another; the last was consecutive. So the total was ten years.