England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 6 March 2018

1. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: On 5th March 2018, that is to say yesterday, this applicant was due to stand trial in the Central Criminal Court before Haddon-Cave J and a jury charged with attempted murder and causing an explosion, contrary to section 2 of the Explosive Substances Act 1883. By reason of the nature of the offence, a preparatory hearing had been convened under section 29(1C) of the Criminal Procedure and Investigations Act 1996, during the course of which the judge was asked to rule upon the admissibility of the evidence of a psychologist which had been obtained in circumstances to which we shall later refer. That hearing was conducted on 23rd February with judgment handed down on 27th February.
2. On 1st March the applicant served Notice of Appeal to which the prosecution responded on the following day. The applicant by his counsel then replied to that response also on that day. At what should have been the beginning of the trial, Haddon-Cave J refused the applicant permission to appeal but could not start the trial until any further application to this court had been resolved. In the circumstances, Mr Maloney QC on behalf of the applicant now applies for leave to appeal against the ruling. The application has been referred to the full court by the Registrar. It is a matter to note that the court is in a position to move swiftly when the need arises, but it is a procedural step to be taken only in the most exceptional circumstances, not least because of the enormous inconvenience that it causes to the court and the organisation of its other business.
3. The provisions of section 37 of the Criminal Procedure and Investigations Act 1996 apply to these proceedings, as a result of which the report both of proceedings and of this judgment is prevented until the conclusion of the trial, save for the specified basic facts such as the name of the accused and the offence. The court does not order that the provisions do not apply. Given that the trial is due to start tomorrow, there is no basis for lifting the restrictions in whole or in part in order to permit the decision to be be reported, albeit anonymously.
4. In short, the applicant is alleged to have manufactured an explosive device which he intended would be detonated on a crowded London Underground train, the Crown contending that he thereby intended to kill those in close proximity and injure many others. The device was constructed using Triacetone Triperoxide ("TATP") which is unstable and unpredictable as its main charge. The initiation mechanism of the device was attached to a timer allowing the applicant to abandon the device.
5. He carried out this plan on 15th September 2017, leaving the device in a carriage on a tube train. The device was detonated as the train arrived at Parsons Green Tube Station, causing a partial explosion. It is a matter of great fortune that the main charge of the device did not function or react as the Crown contended this applicant intended.
6. The applicant is an Iraqi national and during his application for asylum in early 2016 he told immigration officers that he had been taken by force by members of ISIS and had been trained by them. He said they had threatened to kill his family if he had not done what he was told. He denied that he had been sent to Europe to work for the group. He was referred to Prevent and oversight was maintained by a Channel Panel.
7. CCTV from 15th September showed the applicant leaving home shortly before 7 am carrying a bag which it is contended contained the device. Shortly before 8 am he boarded an Eastbound District Line train travelling towards Parsons Green Station. He left the device in the carriage when got off at Putney Bridge Station at 8.17. At 8.19 the device partially detonated causing flames to engulf the area between the rear of carriage six and the front of carriage seven, causing obvious fear and panic amongst the passengers on the train and at the station. CCTV of the applicant's movements thereafter appeared to show that he had taken steps to avoid detection.
8. An examination of the device revealed that it was potentially viable as an improvised explosive device containing several hundred grams of TATP and several kilograms of shrapnel. A viable initiation mechanism had been incorporated into the device using a timer to provide a delay between the instigation of the countdown and the initiation of the device. It had failed fully to function. If it had, it could have caused extensive and indeed fatal harm to people and extensive damage to property. The failure may have been because it was not well constructed or because of defects in the manufacture of the TATP. The applicant was further linked to the device by scientific evidence. On arrest, he admitted that he had constructed the device.
9. In his first interview the applicant said that he had done what he had done in anger, describing it as an act of aggression and over reaction to curry favour with those in Iraq. In a later interview he maintained that he had done so because he was bored and lonely and acted to highlight his distress to others. It is perhaps this latter interview that is reflected in the terms of his defence case statement which Mr Maloney explains remains the basis of the defence which asserts as follows:

"3. The defendant will assert that his actions amounted to 'a hoax'. That is to say, he never intended to create and deploy a device which would cause serious injury to a person or serious damage to property. He did not intend to kill anyone or maliciously cause an explosion that would be likely to endanger life or cause serious injury to property.

4. The defendant used information found on the internet to create the device in question.

5. In creating a TATP, he [that is to say the applicant] deliberately used weaker strength hydrogen peroxide and dilute sulphuric acid in order that the TATP would not explode.

6. In addition, he made modifications to elements of the device designed to avoid generating the kind of pressure that would lead to an explosion. Thus, he did not place a lid on the blue jar and he made a hole within the Tupperware container and the foil surrounding it.

7. He did not intend that the knives and other metal items found in the device would injure people. He believed that they would not be expelled from the device."

10. Thus, there will be two main issues at the trial now due to commence tomorrow. The first is the viability of the explosive device which the applicant made and placed on the London Underground train on 15th September. The second, whether the applicant had the relevant intention to commit the offences as alleged or, as he contends, he had deliberately modified the device so that it would not result in the commission of those offences.
11. The central issue at the preparatory hearing was the admissibility of psychological evidence from Dr Timothy Green and in particular whether the evidence was relevant to the question of intent.
12. In a comprehensive ruling, which it will be clear from the chronology that we have provided was handed down but a few days after the argument was ventilated and which runs to 70 paragraphs, Haddon-Cave J ruled against the admissibility of the evidence. Thereafter he ruled that the application for leave to appeal was out of time and, in any event, without merit. Although Mr Maloney argued before Haddon-Cave J that after his ruling delivered at 11.03 on 27th February an appeal subsequently lodged at 4.49 on 1st March was in time, he has not sought to challenge the judge's finding that it was out of time and thus required leave.
13. In that regard, as to time, the judge pointed to the chronology which involved the preliminary hearing on 19th October 2017. On 19th January 2018 at the PCMH it was claimed that a report from a consultant psychologist would be relied upon for context only and would not go to the issue of intent. This was repeated in a defence note dated 22nd January and in oral submissions. Only on 14th February was Dr Green's report served, one day after it was supposed to have been delivered, and even more serious only on 23rd February was it suggested that it would be relied upon as relevant to the proof of intent. With the trial date due to start on 5th March, that date was immediately in jeopardy, for had it been suggested that this evidence would or could go to the defence of the charge, the prosecution would inevitably have had to seek and would have obtained the opportunity to seek its own evidence. It is not difficult to see why the judge was not prepared to exercise his discretion to extend time.
14. Turning to the merits, having extensively reviewed the authorities, the judge expressed the general principle that the admissibility of psychological evidence was limited to cases of alleged duress and suggestibility in confessions. It is a mistake to refer to that general principle as a rule. The rule is no more than a requirement that, in order to admit the evidence, it must satisfy the appropriate criteria in law.
15. Mr Maloney relied below on two decisions of this court to suggest that psychological evidence could also be admitted on the question of intent. Thompson [2014] EWCA Crim 836 considered the admissibility of expert evidence about Asperger's Syndrome in the context of sexual offences. The offences required proof that there was "intentional touching" and that the touching was "sexual". The content and characterisation of the activity were important. The appellant in that case was obsessed with hygiene and was rule bound such that over-thorough towelling of a boy who had been bathing and inappropriate touching need not have been sexual. The diagnosis of Asperger's Syndrome was relevant to the question, first, what the appellant did, and second, with what intention he did it. The evidence was not admitted to suggest the appellant was not capable of forming the necessary intent because it may have assisted the jury in considering the nature of the act or its purpose. The prosecution, it is important to underline, had suggested the appellant must have been aware he was taking an extreme risk by behaving as he did and that itself pointed to a sexual motive for his behaviour. The expert evidence of his Asperger's Syndrome was thus centrally relevant to this question. We agree with Haddon-Cave J that the judgment of the Court of Appeal in that case repays careful reading. The facts of this case and the issues to be determined are very different to those in Thompson.
16. This fact-focused approach is consistent with the very recent decision in Grant-Murray [2017] EWCA Crim 1228 at paragraphs 37 to 64 in which Thompson was considered. This was a decision on renewed applications for leave to appeal against convictions for joint enterprise murder. One of the applicants, Henry, sought leave to adduce fresh evidence relating to a new assessment suggesting that he had suffered from autism. Despite multiple referrals pre-trial, Henry had never previously been so diagnosed. It was submitted for Henry that knowledge of autism would be relevant to the assessment of Henry's state of mind at the time of the incident and to his credibility. It was also argued that it would be important for the jury to know of the diagnosis, just as knowledge of Asperger's Syndrome was found to be similarly relevant, and of assistance to the court in Thompson. Lord Thomas, CJ commented at 53 that Thompson was not of any real assistance as it was the duty of the court to consider in each case the relevance of such evidence to the issues in the case. A court is not assisted by cases that may, as Thompson did, turn on their own facts. On the facts of Henry, the court declined to grant leave for this fresh evidence to be adduced. When considering its possible impact the court concluded that having regard to all the evidence autism could not have had any effect on the issue of Henry's thinking process at the time of the murder or the assessment of his credibility.
17. Grant-Murray serves to underline the basic proposition that the question of admissibility and relevance will in each case turn on the nature of the issues arising on the specific facts and the extent to which the particular material in question can assist a jury. Thus, for example, as was the case in Thompson, expert evidence may be relevant if it will assist a jury in the interpretation of conduct that to a "neuro-typical mind" may suggest one motive, but in the context of a developmental disorder may appear different.
18. Mr Maloney does not dissent from the proposition that the question of admissibility turns on the facts of each case but argues that this case falls on the side of the line that permits the evidence to be admitted.
19. The other case on which Mr Maloney relies is Huckerby [2004] EWCA Crim 3251 where psychiatric evidence of PTSD was admitted on the basis that it might provide the jury with an explanation for the appellant's behaviour at the time of the robbery, said by the prosecution only to be explicable on the basis that the appellant was an insider. The evidence was admitted. Potter LJ (as then he was) said at paragraph 105:

"Huckerby was not raising a defence of duress; as such he did not seek to 'confess and avoid' participation in the crime. Nonetheless, the absence of a satisfactory explanation for his behaviour having been erected into a main plank of the prosecution case, the situation was analogous to a plea of duress, in the sense that the jury were invited by the prosecution to investigate the mind and motivation of the defendant and to conclude that he willingly followed the instruction of the robbers, as opposed to having his will overcome by fear."

20. We reject the proposition that the evidence of a psychologist is admissible to assist the jury on the question of what the applicant or indeed any defendant actually intended, in this case when he made and deployed the explosive device. Indeed, Mr Maloney does not suggest that Dr Green can give evidence of what the applicant's intention was, but only how his mind might have operated which itself could impact on the jury's consideration of the issue.
21. In reality, however, the objection to Dr Green's evidence is far more potent than that, perhaps because of the limitations of what Dr Green is able to say in the light of the issues in the case and of the overly broad questions put to him. Thus, the context is provided by what the appellant had said and how his instructions have been reflected to the court both in his interview and in the defence case statement which we have set out above.
22. Pulling these strands together, it is said that the defendant deliberately intended a hoax. He did not intend to deploy a device that would injure anyone or cause an explosion that would be likely to endanger life. In order to achieve that end he deliberately used weaker strength chemicals to avoid an explosion. The only proper interpretation of the defence is that the appellant knew perfectly well that if he did create an explosion it would be likely to endanger life, but, on his account, he took steps to avoid that happening. Compare that with Dr Green's report. The highest it is put (in language which we consider more in keeping with defence advocacy) in the report considered by the learned judge, is at 8.3 in these terms:

"Mr Hassan's need for attachment and positive reinforcement to combat depressive and anxious cognitions and feelings leaves him vulnerable to overwhelming feelings of anxiety regarding his self-worth and self-esteem. This may be seen to have resulted in his acting as he did at the time of the index offence, where it might be suggested he felt overwhelming distress and had no effective means of highlighting this to others or of communicating his need for assistance. This impoverishment in capacity to communicate distress to others is in keeping with a presentation of Asperger's disorder. I would suggest that Mr Hassan was isolated and frightened at the time of the alleged offence and, lacking the ability to develop any appropriate problem solving strategies to seek help due to his high functioning Autism, he engaged in a behaviour that he believed would draw attention to his plight, without fully understanding or being able to consider the consequences of his actions."

With great respect to Dr Green that flies in the face of what is contended in the defence case statement.

23. The question is what the applicant intended and it is not suggested that he was not perfectly capable of forming an intent to kill or endanger the lives of others. If Dr Green was purporting to answer that question, which Mr Maloney in any event challenges, he is not entitled to do so. If he is not, one could question how the jury would be assisted by what he has said in the context of what the issues identified by the defence case statement are.
24. After the ruling of the learned judge, Dr Green provided another lengthy report in which he sought to deal with some of the concerns the judge had raised. The judge was not prepared to consider this further evidence but in order that this judgment is a complete analysis we include from this report at paragraph 4.2:

"Mr Hassan is not capable, in my opinion, to clearly distinguish in his thinking that he could have caused harm. Indeed, his thinking is of such a concrete nature that he could believe that he had constructed a device that would draw attention but would do no harm at all. Such a style of thinking is entirely consistent with a diagnosis of Asperger's Disorder."

The doctor then moves back into advocacy mode by continuing:

"Mr Hassan appears shocked that he has caused psychological distress to people who were present, as well as to the broader community. It is the nature of an individual with an Autistic mind to not be able to understand 'the grey areas' as it were, not to be able to consider the actions upon a continuum of what might be risky, but instead to be caught in rigid and concrete thinking that is the defining characteristic of individuals with Asperger's Disorder. In short, it is my opinion that it is likely that Mr Hassan may not have forseen deaths of persons in the train nor the risks to such persons nor serious injury to them or property: he may well have been, as a result of the autistic functioning of his mind, specifically his Asperger's Disorder presentation, too single-mindedly focused on his task of making a scene to highlight the fact that he was experiencing a lack of support."

That again runs entirely counter to the assertion at paragraph 5 of the defence statement that the applicant deliberately used weaker strength hydrogen peroxide and dilute sulphuric acid in order that the TATP would not explode and indeed made other modifications to avoid generating the kind of pressure that would lead to an explosion. Again, Dr Green adduced the phrase "not capable to clearly distinguish that he could have caused harm" which is equivalent to his earlier phrase "not fully understand". For our part we do not see what the jury could make of this graded opinion.

25. In any event a further difficulty is how this evidence, were it to be given, would help the jury in the context of the defence case statement that the device had been carefully calibrated not to cause harm. It is as if Mr Maloney wants to argue that his client should be acquitted because he tried to be careful to construct a device that would be a hoax and would not cause injury or endanger anyone, but if the jury reject that submission, he should be acquitted because he could not fully understand the consequences of his actions or clearly distinguish he could have caused injury. These defences are, with respect, inconsistent.
26. In our judgment, irrespective of what might be the position in other cases, the learned judge was right to reject this evidence as inadmissible and right to refuse leave to appeal. For such material to be admitted so late in the day it would have to be clear and compelling. Instead not only was it out of time it is, in our judgment, inadmissible as a matter of law and in any event inconsistent with the way the case is being put in the defence statement. It would not serve to elucidate but merely confuse. On all these grounds leave to appeal is refused.

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