England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Friday, 28th July 2006

1. SIR IGOR JUDGE: This is a renewed application for leave to appeal against conviction by Mustafa Mustafa, otherwise known Abu Hamza, otherwise known as Abu Hamza al Masri. On 7th February, in the Crown Court at Woolwich before Hughes J (as he then was) and a jury, he was convicted of six counts of soliciting to murder, three counts of using threatening abusive or insulting words or behaviour with intent, or words likely to stir up racial hatred, one count of possessing threatening, abusive or insulting recordings and one count of possession of a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism. The total sentence imposed was 7 years' imprisonment.
2. The jury acquitted the appellant of three counts of soliciting to murder and of one count of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred.
3. It is sufficient for present purposes to identify the rival contentions. This applicant was at all material times the Imam of the Finsbury Park Mosque. During a period of about 3 to 4 years, between 1997 and 2000 or thereabouts, he delivered a number of speeches, lectures and sermons. The case for the prosecution was that in the course of those speeches and sermons he incited people to murder those whom he, the applicant, regarded as not true believers. He was also alleged to have said words which were such as to incite racial hatred against Jewish people.
4. He was arrested following an extradition arrest warrant issued at the behest of the United States government in May 2004. His home was searched. Ten volumes of the Encyclopaedia of Jihad and a large number of audio and video tapes featuring some of his speeches and sermons between 1997 and 2000 were seized. Some of them became evidence in the case. It is a feature of the submission to us that a substantial proportion of that material had been known about and to the police by 2000.
5. The defence case was that his words did not incite others to murder, nor did he incite racial hatred, and he did not intend the words that he used to produce either result. At times he was speaking in a way which was repeating or reconstructing, in a theological way, what the Quaran had said. At other times the words that he was using were expressed in discussion on abstract theory. At times when he spoke of killing, he was really arguing that a system of government or a social order should be brought to an end, rather than that any individual should be killed. The only occasions when he would contemplate anyone actually being killed was if that person because involved in a fight in which he or she was doing the threatening. He wished that Muslims should stand up for themselves. He wanted those who lived in the United Kingdom to go back to their own countries and work there towards an Islamic State. If he was ever critical of Jews, it was not because he was inciting or intending to incite racial hatred; he was not critical of them because they were Jews but only because their actions, which were wrong according to the law of Islam, or caused harm to Muslims.
6. There was in fact no real dispute about the material. The question for the jury was whether or not, considering all the material, the Crown had established the different counts alleged.
7. A substantial number of grounds of appeal have been drawn to our attention by Mr Edward Fitzgerald QC, on behalf of the appellant. We can give our conclusion very briefly and the conclusion we have reached means it will be sensible for us to be sparing in what we have to say. We do not wish to raise any false optimism in the appellant. Nevertheless, in our judgment, there are a number of grounds drawn to our attention by Mr Fitzgerald which are arguable and should go to a full hearing.
8. We begin with ground 6. Ground 6 raises a pure point of law which arises from the proper construction of section 4 of the Offences Against the Person Act 1861, and which it is right to record is not free from difficulty or controversy. As it seems to us, the Full Court should consider the true ambit of section 4, and whether the solicitation of non-citizens to act so as to murder foreigners abroad is justiciable.
9. So far as grounds 1 to 5 are concerned, again, we take the view that they raise issues which are arguable.
10. It is unnecessary to go through the details of the publicity which this case, or this appellant, has attracted. In our judgment, the impact of the pre-trial publicity and the publicity, during the trial itself, on the fairness of the proceedings generally, should be considered by the Full Court, with particular reference to the fact that the crimes of which the appellant was convicted took place before 2000 and the decision to prosecute him was delayed until 2004. Mr Fitzgerald should be free to develop all his submissions arising under those grounds.
11. Our conclusion is that the remaining grounds of appeal are unarguable. We shall deal with them very briefly. Ground 7 alleged that there was insufficient evidence that murder had indeed been incited and that the judge wrongly rejected Mr Fitzgerald's submission that there was no case to answer in respect of the incitement to murder offence. The basis of this submission was that it was all too vague. There was no sufficient certainty or specificity -- to use Mr Fitzgerald's words -- about the intended target, or indeed about the circumstances in which the killing would take place and whether it would be lawful or not. In our view, the evidence was plainly sufficient for the judge to leave the case to the jury to decide. The question of precisely what the words actually used by the appellant amounted to was for them.
12. As to ground, 8, it was argued that there was no case to answer in the context of the undoubted possession by the appellant of what is described as the Afghan Encyclopaedia of Jihad. The argument is that as the police had returned the encyclopedia to the appellant in 1999, that of itself afforded him a reasonable excuse for its possession, one which, as a matter of law, required a direction to the jury. We agree that the issue had to be left to the jury. The judge left the defence to the jury with the appellant's explanations for his possession, the circumstances in which he recovered possession and the arguments by Mr Fitzgerald on his behalf in relation to reasonable excuse for its possession. In our judgment, that was precisely the way in which the issue should have been left to the jury.
13. Ground 9 depends on a submission that the judge failed to have sufficiently in mind the amendment to the Public Order Act 1986, which, with effect from December 2001, in the course of the Anti-Terrorism Crime and Security Act 2001, by means of section 37 repealed the words "in Great Britain" and removed them from section 17 of the 1986 Act. Mr Fitzgerald's complaint in essence is that the judge did not direct the jury in express terms whom the racial hatred in question should apply. Given the way in which the judge in fact directed the jury, we can see no fault or problem. He made clear in his summing-up that they should consider the issue in relation to Jews generally. That, in the context of this case, was a sufficient expression of the issues.
14. Ground 10 raised issues the judge's directions about the circumstances in which killing, following the breakdown of the ordinary principles of law and order, whether by way of civil war, or armed conflict, should be approached. The way in which Mr Fitzgerald put his submission was that this was the kind of case to be equated with a defence of killing on the battle field. If that was what the appellant was exhorting, then it was not unlawful killing. Therefore he was not soliciting to murder, and therefore the offence did not arise. We have read four pages of the judge's direction to the jury on this issue and it was impeccable. The judge distinguished between lawful killing, that is to say killing in self-defence or in defence of another person, and contrasted it with retaliation or counterattack. He then developed the concept in the course of his summing-up, and extended it, as far as reasonable, in the context in which Mr Fitzgerald was seeking to argue that his client's exhortations were not unlawful. He dealt with it by referring to "armed fighters", as he put it, trying to choose a neutral term: rebels; insurgents; participants in some kind of civil war. He went on:

"...it is not the law that armed people participating in that kind of conflict cannot commit murder. An aggressive killing, other than in self-defence, in the course of such conflict is murder. There is no exception for such a situation."

That in law was an accurate direction. He went on however:

"If people join, as it were, a frontline where you have opposing armed forces facing each other then you may think they may kill aggressively; in other words, not in self-defence, or in self-defence of themselves or their colleagues, and it is jolly difficult to tell in advance which it is going to be. So if you come to the conclusion that the only sense in which the defendant was encouraging killing was that he was encouraging people to go and join a frontline of that kind, facing another armed body, you may think that you really cannot be sure that what he was encouraging would necessarily extend to include murder; that is to say, killing beyond self-defence. Similarly, you may think that if what he was encouraging went no further than encouraging people to go to Palestine, and if there was an attack on fellow Muslims, defend them from an imminent attack, then of course the same would apply. That would be an encouragement of self-defence. It is not an offence."

That direction seems to us to encompass all that was necessary and appropriate, and as favourable to the appellant as in the circumstances it could have been.

15. The next ground of appeal is a complaint that the judge unduly restricted the scope of the expert evidence which the defence expert, Dr Seal, sought to give about issues like the number of casualties on each side arising from the Interfada, and the proportions that those casualties represented of the people involved on each side. He was, the complaint says, unduly restrictive in relation to expert evidence about the scale of killings of Muslims, in particular, in Bosnia and Kosovo.
16. Our conclusion on that ground is very simple. The judge again was as generous as he might conceivably have been to the appellant. Much of the evidence of Dr Seal which we have read went much further than would properly have been admissible. The judge sought to keep some control on the evidence, and of course did so, but he was extremely loath to interfere, even when some of the evidence offered by Dr Seal went beyond his ruling that some of the evidence should be admitted before the jury. Again, therefore, there is nothing in that point.
17. A further ground, ground 12, raises issues of freedom of speech, the reasonableness and proportionality of the appellant being prosecuted, for words used and speeches made in 1997, 1998 and 1999 and whether or not it was, by 2004, proportionate or reasonable for him to be prosecuted at all. The complaint is that the judge decided that he should deal with this issue. It was not a matter for the jury. The submission is flawed. If, and the jury found, that the appellant was using words alleged, with the intent alleged then, with great respect, the issue of freedom of expression simply does not arise. To incite or solicit murder is not an acceptable use of the right to free speech. Accordingly that ground too fails.
18. A number of other grounds were drawn to our attention towards the end of Mr Fitzgerald's submissions. He will acquit us of discourtesy if we express ourselves in these simple words: we do not think that anything in those grounds adds to the material which he will be able to develop before the Full Court and, if he were unable to develop any of them before the Full Court, none would begin to approach anything like the sort of argument which would justify this Court concluding that the conviction was unsafe. Accordingly, we shall add nothing further to this part of the judgment.
19. The final matter is the application for leave to appeal against sentence. It is perfectly obvious that there was some kind of hiatus in the arrival of the papers at the Court of Appeal office. Whose fault it was does not matter. It is plain that there was an intention to seek leave to appeal, and although the matter was not put before the Single Judge for his attention it has now been put before us for ours.
20. We can express our conclusion on sentence very simply. There were a number of features of the case, including the delay in bringing the case to trial which might have had an effect on sentence, and indeed did so. We are less sure that it really would be right to describe what happened when the police returned various pieces of information in the form of speeches and books to the appellant, can truly be regarded as an encouragement to carry on. Whether that is so or not, it is perfectly plain that at the end of the trial the judge reflected very carefully on the appropriate level of sentence for this particular defendant. He related his sentence to the sentence passed in a case where similar considerations to the ones which arise here arose, and having done so, he decided that the sentence should be neither greater nor less. We can see no ground for interfering, or arguably concluding that the sentence was manifestly excessive or wrong in principle. Accordingly, the application for leave to appeal against sentence is refused.
21. SIR IGOR JUDGE: Mr Fitzgerald, there are one or two matters of consequence that arise now. For the hearing of the appeal we shall order a copy of the transcript of the judgment for 9th January 2005 and 18th January 2005. Are there any others that you have in mind?
22. MR FITZGERALD: No, my Lord, those are the only ones, they go to the later rulings on the abuse issue, yes, my Lord. Given your Lordship's ruling, no.
23. SIR IGOR JUDGE: Our present view is that the case should be listed in October or November, any way this coming autumn. Can it be ready?
24. MR FITZGERALD: Oh, yes, my Lord, yes, we can.
25. SIR IGOR JUDGE: I make it clear to you that when the Crown is notified of this decision I shall leave open to them to come to Court, obviously on notice to you, to ask that the case should be expedited. At the moment we are simply working on the basis -- and I do not mean this in any way insultingly -- on the basis of what you have told us. There may be more to it than you know.
26. MR FITZGERALD: You mean in relation to the extradition, my Lord. I hope you have seen all the relevant material.
27. SIR IGOR JUDGE: I am sure everything that we should have seen, has been shown to us but there may be further material of which you are ignorant.
28. Our present view is that listing should be told that the time estimate to the hearing should be one to one-and-half days. Do you agree or disagree, do you think it should be longer or shorter?
29. MR FITZGERALD: Well, my Lord, I wonder whether your Lordship would consider 2 days.
30. SIR IGOR JUDGE: I am perfectly happy to consider 2 days.
31. MR FITZGERALD: The reason is your Lordships have not seen it today, but you have seen it in the summary, the material in relation to the period between 1997 and, say, 1999 and 2004, particularly the press matters was very considerable and some of it one needs to see the visual impact.
32. SIR IGOR JUDGE: Mr Fitzgerald, do not worry, I think that when we are sorting this out we should say that the constitution should have a day to pre-read. Would it be possible for you or those who instruct you to produce some bundles of the material which is covered by grounds 1 to 5, so the Court can look at them, so to speak, during the course of the reading day rather than take up time.
33. MR FITZGERALD: Absolutely, my Lord, we will do that. Indeed could therefore we have legal aid for my solicitors so?
34. SIR IGOR JUDGE: Let us take it in stages. The answer is yes.
35. MR FITZGERALD: My Lord, yes we can because I think we have it all on disc, my Lord. We, counsel, have it on disc.
36. SIR IGOR JUDGE: Good. I do not want there to be a further directions hearing so I am discussing this with you in the absence of the Crown, but it would obviously be sensible for you to prepare a reading list, directly related to the various bundles which will be used at the time of the hearing of the appeal and then to ask Mr Perry, assuming he is acting for the Crown, to do the same. I think we will say one day for pre-reading and two days for the hearing. You should have legal aid, Mr Fitzgerald. You should have legal aid for leading counsel and junior counsel. What about your solicitors?
37. MR FITZGERALD: Well, my Lord, I would ask that it be extended to them. I just foresee problems if we do not have that facility.
38. SIR IGOR JUDGE: Why? I do not mean this insultingly to them, but why?
39. MR FITZGERALD: Can I just ask my junior?
40. SIR IGOR JUDGE: Would you like us to retire?
41. MR FITZGERALD: No, my Lord. I have discussed it with my junior who played a very great part in preparing. It is simply that we feel it will be difficult for us to produce all the materials, particularly in relation to the periods in January where you have some of the materials and....
42. SIR IGOR JUDGE: Would it be sufficient for the purpose, if we said you could have a solicitor in order to produce the materials?
43. MR FITZGERALD: Yes. The only other purpose is, of course, it is important to liaise, at least have a conference with the applicant himself to explain the position and we would ask that my instructing solicitors be granted that.
44. SIR IGOR JUDGE: Yes.
45. MR FITZGERALD: There is quite a lot of matters on which so far we have relied on in formal communications.
46. SIR IGOR JUDGE: Yes, we agree.
47. MR FITZGERALD: I am obliged. Your Lordships know the position. We agreed to do this matter pro bono for today.
48. SIR IGOR JUDGE: The legal aid will extend backwards for today's purpose and the preparation for today.
49. MR FITZGERALD: I am obliged in that. My Lord, given that the issues have now been confined, I think we can prepare matters fully by the end of September before the Court.
50. SIR IGOR JUDGE: I suggest you should be working to produce your final effort of the papers by the middle of September, so the Crown can respond, so if a gap appears in an appropriate list, we can take the case in October.
51. MR FITZGERALD: We will endeavour to have our materials ready by mid-September.
52. SIR IGOR JUDGE: Will you please have them ready by 15th September.
53. MR FITZGERALD: As I said, a great deal we have already on disc somewhere.
54. SIR IGOR JUDGE: Thank you very much, Mr Fitzgerald, thank you for your help.