APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Menzies Lady Clark of Calton Lord Philip	[2013] HCJAC 31 Appeal No: XC286/12 XC287/12   OPINION OF THE COURT   delivered by LORD PHILIP   in   NOTE OF APPEAL AGAINST CONVICTION   by   TREVOR MUIRHEAD and NEIL ARMSTRONG McKENZIE   Appellants;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellants: Jackson QC, Nelson; Paterson Bell, Edinburgh

Findlay, QC, Young; John Pryde & Co, Edinburgh

Respondent: Miller, AD; Crown Agent

14 March 2013
[1] The appellants were tried before the High Court of Justiciary at Glasgow in February and March 2012. After a trial in which neither appellant gave evidence McKenzie was convicted on 30 March 2012 of the following charge:

 

"(001) on 3 March 2011 or 4 March 2011 at Gladstone Road, Saltcoats and elsewhere, you NEIL ARMSTRONG MCKENZIE did dispatch an item by post to Neil Lennon, Celtic F C, Celtic Park, Glasgow, G40 3RE with the intention of inducing in him or some other person a belief that it was likely to explode or ignite and thereby cause personal injury or damage to property;

CONTRARY to the Criminal Law Act 1977 Section 51(1)(b) and (4) as amended".

 

[2] Muirhead was acquitted of that charge but both appellants were convicted of a second charge as amended which was in the following terms:

"(002) between 1 March 2011 and 15 April 2011 both dates inclusive at Royal Mail, Kirkintilloch Delivery Office, 9 Campsie Road, Kirkintilloch, Cottage 27, Quarriers Village, Bridge of Weir, 260 Gallowgate, Glasgow, Royal Mail, Tomb Street, Belfast, Montgomery Terrace, Kilwinning, B & M stores & B & Q plc both, Hawkhill Retail Park, Stevenston, Salon Services, 28 Nelson Street, Kilmarnock and elsewhere you TREVOR MUIRHEAD AND NEIL ARMSTRONG MCKENZIE did conspire with each other to assault Neil Lennon, Paul George McBride QC, Patricia Godman, MSP, all c/o Strathclyde Police, and various persons within the premises occupied by Cairde Na Heireann, 260 Gallowgate, Glasgow by means of sending a quantity of improvised explosive devices to them, and in pursuance of said conspiracy you did;

(a) on various occasions at B & M stores & B & Q plc both, Hawkhill Retail Park, Stevenston, and elsewhere, purchase a quantity of nails, envelopes, travel bottles and digital sports watches and other items;

(b) induce Paul Millan, c/o Strathclyde police to purchase a quantity of cream peroxide on behalf of Gemma Elizabeth Muirhead, c/o Strathclyde police and hand it to you, whereas you intended to use the said cream peroxide in pursuance of said conspiracy;

(c) dispatch by post an item, addressed to Neil Lennon, Celtic FC Training Centre, Lennoxtown, East Dumbartonshire, namely a package comprising of a plastic bottle containing a quantity of Tri‑acetone Tri‑Peroxide, with a quantity of wire attached to same, and a plastic bag containing a quantity of nails and a watch component which you believed comprised an improvised explosive device, capable of igniting and exploding causing severe injury to another person;

(d) dispatch by post an item, addressed to Trish Godman MSP, Renfrew House Cottage, 27 Quarriers Village, Bridge of Weir, namely a package comprising of a plastic bottle containing a quantity of Tri‑acetone Tri‑Peroxide, with a quantity of wire attached to same, and a plastic bag containing a quantity of nails and a watch component which you believed comprised an improvised explosive device, capable of igniting and exploding causing severe injury to another person;

(e) dispatch by post an item, addressed to Cairde Na Heirann, 260 Gallowgate, Glasgow G4 0TU, namely a package comprising of a plastic bottle containing a quantity of Tri‑acetone Tri‑Peroxide, with a quantity of wire attached to same, and a plastic bag containing a quantity of nails and a watch component which you believed comprised an improvised explosive device, capable of igniting and exploding causing severe injury to another person;

(f) dispatch by post an item, addressed to Paul McBride QC, Advocates' Library Parliament House, Edinburgh EH1 1RF, namely a package comprising of a plastic bottle containing a quantity of Petrol, with a quantity of wire attached to same, a plastic glove, a quantity of nails and a watch component which you believed comprised an improvised explosive device, capable of igniting and exploding causing severe injury to another person;

all with intent that said Neil Lennon, Paul George McBride QC, Patricia Godman, MSP, all c/o Strathclyde Police and various persons within the premises of Cairde Na Heireann, 260 Gallowgate, Glasgow should receive and open said packages whereupon the contents would ignite and explode, causing severe injury to them".

 

[3] The case against the appellants arose out of a set of events in which a number of packages containing what appeared to be improvised explosive devices were sent through the post addressed to various individuals said to be associated with Celtic Football Club and to a Scottish organisation associated with Sinn Fein. These events attracted a large amount of media interest at the time.

[4] The indictment originally contained other charges and averments which were no longer live at the stage of the jury's determination. In particular, there was an alternative charge to the second charge libelling a conspiracy which was said to constitute a contravention of section 3(1)(a) of the Explosive Substances Act 1883. There were also charges of contravening section 3(1)(b) of the 1883 Act (possession of an explosive substance), and section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (threatening behaviour), and a charge of attempting to defeat the ends of justice. Charge 2 and its alternative originally included an averment that the appellants intended to cause the death of the intended recipients of the packages and that it would be proved that the offence was aggravated by religious prejudice.

[5] At a preliminary hearing on 20 February 2012 the advocate depute was allowed to delete the averment of aggravation by religious prejudice and at the conclusion of the Crown case the alternative to charge 2 and the remaining charges were departed from by the Crown.

 

The Packages
[6] In summary, the evidence concerning the packages disclosed the following:

1. On Friday 4 March 2011, a package addressed to Neil Lennon, Celtic Football Club, Celtic Park, Glasgow, G40 3RE was collected by Post Office staff from the post box at Gladstone Road, Saltcoats. At the sorting office the package attracted concern. It comprised a brown padded envelope which was found to contain a quantity of nails and an apparent digital timing device attached by an insulated copper wire to a lump of putty.

2. On Saturday 26 March 2011, a package addressed to Neil Lennon, Celtic FC Training Centre, Lennoxtown, East Dumbartonshire was noticed at the Post Office delivery office in Campsie Road, Kirkintilloch. This package comprised a brown padded envelope which was found to contain a quantity of nails, a small plastic bottle containing liquid, an apparent digital timing device and an insulated copper wire.

3. On Monday 28 March 2011, a package was delivered to the constituency office of Trish Godman MSP in Bridge of Weir. The package comprised a brown padded envelope which was found to contain a quantity of nails, a small plastic bottle containing liquid, an apparent digital timing device and an insulated copper wire.

4. On Monday 28 March 2011, an unsuccessful attempt was made by Post Office staff to deliver a package addressed to an organisation known as Cairde Na Heirann at 260 Gallowgate, Glasgow G4 0TU. The package comprised a brown padded envelope which was later found to contain a quantity of nails, a small plastic bottle containing liquid, an apparent digital timing device and an insulated copper wire.

5. On Friday 15 April 2011, a package addressed to Paul McBride QC, Advocates Library, Parliament House, Edinburgh EH1 1RF was collected by Post Office staff from the post box at Montgomery Terrace, Kilwinning. It was noticed to be smelling of petrol and was subsequently found to comprise a brown padded envelope containing a quantity of nails, a small plastic bottle, an apparent digital timing device and an insulated copper wire.

[7] The small plastic bottles which featured in four out of the five packages were capable of holding 100ml of liquid and were white in colour. They were identical to items which were sold in packs of three as travel bottles by B & M Stores in Stevenston, Ayrshire. The apparent digital timing devices were all similar and appeared to comprise the intact watch faces of cheap digital "sports" watches, such as were also sold by B & M Stores. The digital face of each watch had been removed from the plastic surround and wrist band which accompanied each.

 

The Contents of the Plastic Bottles
[8] The liquid which had apparently been within the bottle in the package addressed to Mr McBride had leaked out into the envelope and was most probably petrol. The liquid contained within the other three plastic bottles gave positive presumptive tests for the presence of peroxide. A full analysis of the contents of the bottle found in the Godman package was undertaken by experts from the Forensic Explosives Laboratory at Fort Halstead in Kent. It was found to contain the peroxide based explosive Tri‑acetone tri‑peroxide, known as "TATP".

[9] TATP is a very sensitive primary high explosive which can be detonated by static, spark, flame, impact or friction. However TATP is normally found in crystalline form. Neither of the two experts from Fort Halstead had previously encountered it in liquid form and their evidence as to how it would react in liquid form was qualified to that extent. TATP can be created quite easily, although it is dangerous to do so. The necessary ingredients are peroxide, acetone and acid. A combination of hydrogen peroxide hair dye, nail varnish remover and vinegar, or even lemon juice, may be sufficient to produce some TATP.

[10] The evidence as to the analysis of the liquid from the Godman package revealed that between 90 to 100ml of liquid was present in the bottle. Hydrogen peroxide to the extent of 4% was identified within this liquid, as was acetone to the extent of 25%. 0.6 of a milligram of TATP was identified within the liquid by a test with a margin of error of between 30 and 40 per cent.

[11] To put this into context, the explosives expert explained that in crystalline form TATP is rather like grains of sugar. One grain might give a sort of a "pop" sound if detonated and around a gram in weight, approximately a teaspoon full, would be sufficient to cause damage if detonated. The amount of TATP identified in the liquid would equate to one half of a grain of crystalline TATP. The liquid from this bottle was subjected to an explosive performance test, which was described as showing that it had almost no discernable effect.

 

The Case against the Appellants
[12] The evidence demonstrated that McKenzie had purchased the plastic bottles, the watch components and some nails. Muirhead arranged for his son, Paul Millan, to purchase two bottles of hydrogen peroxide hair dye which he then delivered to his father's house. Documentation vouched the date of purchase as 18 March 2011. The evidence generally demonstrated a significant level of association between the two appellants.

[13] The Crown conceded that none of the five devices was capable of igniting. The first obviously fell into this category, given that no explosive substance was present. In the remaining four devices the digital watch faces were contained within two moulded plastic halves held together with small screws. In each case one bare end of the wire was attached to the external part of one of the screws holding the mouldings in place. The wire was then led under the flap of the envelope and the other bare end was placed into the liquid within the bottle with the screw top holding it in place. There was thus no detonator or any other form of power source contained within any of the devices and the watch components had no timing function.

[14] The Crown's position was that the appellants were each responsible for dispatching by post items which they believed comprised improvised explosive devices capable of igniting and exploding causing severe injury. The accepted reality was however that the devices were not capable of igniting. There was insufficient explosive material present to cause any damage. The issue at the heart of the case therefore came to be what the evidence demonstrated about the appellants' understanding of the nature of the individual devices.

[15] The evidence which the Crown relied upon in seeking to establish this crucial element of their case came largely from things which the appellants said to other witnesses, were heard to say in discussion with each other, or said to the police at interview. Certain text messages sent from Muirhead's mobile phone also contributed.

 

Gordon Muirhead
[16] Muirhead's son, Gordon Muirhead, spoke of a visit to his home in Montgomery Terrace by his father and McKenzie around 7pm on the evening of Thursday 14 April. Gordon Muirhead's home was in the same street as the post box from which the package addressed to Paul McBride was uplifted around 4.30pm the following afternoon. Anyone leaving the Muirhead front door and turning left would walk in the direction of the post box.

[17] The trial judge describes Gordon Muirhead's evidence about the events of that evening as confused and guarded. He denied making certain of the comments attributed to him about that evening's events as noted in his police statement. However on his evidence the jury would have been entitled to conclude that during that evening McKenzie at one point said something about the occupants of the house not turning left if they should be leaving the house the next morning, not looking out if they heard a bang during the night, and that Montgomery Terrace was going to be famous. The jury would also have been entitled to hold that as the appellant Muirhead was leaving he said not to go left if they went out.

 

Overheard Conversations
[18] Authorised intrusive surveillance permitted evidence to be led of discussions which took place within McKenzie's motor vehicle between 4 and 9 May 2011. On 4 May it was not entirely clear who else was present, but McKenzie was heard to say that he was "telling thingmy how to use a, how to build a bomb".

[19] On 9 May the two appellants could be heard to discuss matters which were clearly connected to the ongoing police enquiry into the sending of the packages. Reference was made to having put everything in the bin and to the police not being able to say they had peroxide or anything like that. Later that same evening, at a time when visual observations identified Muirhead and McKenzie as the only occupants of the vehicle, there was a further passage of conversation overheard which was noted in these terms:

U/K M 1 (Unknown male 1)

U/K M 2 (Unknown male 2)

U/K M 1 - Whit dae they think were going to dae build a bomb

and chuck the stuff in the bin.

U/K M 2 - They think we are thick.

U/K M 1 - They think they are dealing with a couple of fucking hillbillies.

U/K M 2 - They think all the Ayrshire boys are dafties.

U/K M 1 - I think we should get enough stuff together Trevor and fuckin plant one outside the police station. Put the shiters right up them by the way.

U/K M 2 - And let the fucker off.

U/K M 2 - Just gie them the message, just gie them the message let it fuckin right off man. Its getting beyond a joke now. Away last Wednesday night we will be back between 7 and 9 and they didny come back and that copper.

 

Police Interview
[20] At interview Muirhead said different things at different stages. However in summary he came to accept that he had obtained 2 bottles of hydrogen peroxide hair dye and had handed them on to McKenzie. He accepted that he was present when the first package was posted and that he knew packages were getting made up and were getting sent. That apart, his general position was that the packages were nothing to do with him, that in so far as he knew anything about them he thought they were hoaxes, or a joke, or some sort of fantasy, that he didn't know the packages were peroxide based or that peroxide could be a bomb component. In relation to the conversation of 9 May his position was that he had just been letting off hot air. He said that he wouldn't have anything to do with planting bombs.

[21] At interview McKenzie also said different things at different stages. However in summary he came to accept that he had an involvement, that he purchased the stuff for most of the packages, that he knew some of the packages were being sent, that he didn't send or make them but told others how to make them, that the first package was a hoax, that he didn't know if the others were hoaxes and that he had seen on the internet how peroxide could be mixed with something to make a flash. In general his position was that he had passed stuff on to Muirhead and that the whole purpose of the exercise had been to have a bit of banter, to send the items for a laugh and as a hoax. At one stage of his interview he accepted that he had constructed the first package on his own but stated that it was not him who placed it in the post box. He explained that the conversations which took place in his car were just him and friends having a laugh and a joke.

 

Text Messages
[22] The evidence demonstrated that certain text messages had been sent from Muirhead's mobile phone to McKenzie's mobile phone. Three of the most significant seemed to be these:

14 April 06.49 - "don't worry m8 we will get the taig bastard"

15 April 19.43 - "not heard anything it must be on its way"

16 April 02.56 - "sorry about the time m8 our package was in Pennyburn last night waiting on bomb disposal"

(Pennyburn was an area in which the post office van driver stopped his vehicle having detected a smell of petrol coming from the package and caused the attendance of police and subsequently bomb disposal experts.)

 

[23] The evidence in the case lasted a number of weeks. After the Crown speech submissions were made on behalf of both appellants in terms of section 95A(2)(b) of the Criminal Procedure (Scotland) Act 1995. The Crown accepted that the mens rea of conspiracy to murder required the intention to cause death and the trial judge was satisfied that there was no evidence to permit that allegation to be considered by the jury. He accordingly directed that the indictment be amended by the deletion of the words "and death" where they appeared in each of subheads (c), (d), (e) and (f) of charge 2 and in the concluding words of the charge, and by the deletion of the words "and murder" where they appeared in the first paragraph of charge 2.

[24] In his charge the trial judge gave detailed directions on a number of matters, including what evidential effect certain aspects of the testimony led did or did not have. He sought to set out for the jury the evidence which was available in considering whether or not it had been established that the appellants were involved in a conspiracy of some sort with one another. He then went on to set out the considerations which the jury would need to take account of in determining what the nature of any such conspiracy was and in particular whether the essential component of each appellant's belief had been established.

 

Grounds of Appeal

[25] Ground 1 It was argued on behalf of both appellants that the trial judge had erred in repelling the submission of no case to answer. It was accepted that he was correct to hold that there was sufficient evidence available to entitle the jury to conclude that the appellants were acting together in a conspiracy which extended to sending the relevant packages to the organisation and individuals concerned. The appellant's submission however was that there was insufficient evidence to entitle the jury to find it proved that the appellants believed that the packages were capable of exploding and causing injury. The Crown's position was that there were three main sources from which the jury could infer the necessary belief on the part of the appellants. These were the conversations in Gordon Muirhead's house, the conversations overhead in McKenzie's car, and the use of materials which, when combined in appropriate quantities and proportions, were capable of exploding. Counsel for the appellants argued that these conversations did no more than express hatred and a desire to frighten. The conversation in the car might have related to a conspiracy aimed at the police rather than at the complainers and, in any event, the content of the conversations was too ambiguous to entitle the jury to rely on it.

 

[26] Ground 2 The appellants' second argument was that the conviction of the appellants on charge 2 was a verdict which no reasonable jury could have returned. No reasonable jury could come to the conclusion on the evidence that the appellants had the necessary belief. They were apparently reasonably intelligent men and it was impossible that they could have believed that the packages were capable of exploding or igniting. The evidence on which the Crown relied was of such poor quality that no reasonable jury could have relied on it. The evidence of Gordon Muirhead was clearly unreliable. Only a very small amount of peroxide was found, and the appellants' position in police interviews was that the devices were hoaxes. Reference was made to the cases of King v HMA 1999 SCCR 330 and AJE v HMA 2002 SCCR 34.

[27] On behalf of the Crown it was argued that there was sufficient evidence to entitle the jury to conclude that the appellants believed that the packages were capable of igniting and causing injury. They pointed to the adminicles of evidence set out below and in particular the fact that the appellants went as far as actually creating TATP albeit in harmless quantity. The jury were entitled to infer that their failure to make an explosive substance was explained by incompetence or lack of knowledge. In relation to the second ground of appeal the Crown argued that the judge's directions were comprehensive and detailed and had not been subject to any criticism. The no reasonable jury test was high and demanding and had not been met.

 

Decision

[28] In his charge the trial judge recognised that the Crown's case was perilled on their ability to demonstrate that, despite the facts of the matter, each appellant believed that the various parcels sent comprised improvised explosive devices which were capable of igniting and exploding causing injury. The question was whether the Crown had led evidence which would permit the jury to infer that this was the state of belief of each appellant. The question of what inferences were available as to the appellant's belief had to be considered in the light of an admitted sufficiency of evidence to demonstrate that they were engaged in a conspiracy to construct and send the packages and contents as they were found to be.

[29] The evidence available demonstrated the following:

1. McKenzie purchased the digital watches and the plastic boxes which featured in the construction of the devices sent;

2. Muirhead acquired peroxide for which he had no obvious use;

3. three of the four relevant packages tested positive for the presence of peroxide;

4. both appellants were aware that peroxide was used in the construction of the devices (this arises out of the first discussion on 9 May);

5. peroxide is a component of the explosive substance TATP;

6. a small quantity of TATP was detected in the package addressed to Ms Godman;

7. a quantity of nails was present in each package;

8. McKenzie referred to telling someone how to build a "bomb";

9. the word "bomb" was used in discussion between the appellants which is referable to their conspiracy. In that same conversation reference was made to letting something off;

10. Muirhead texted "we will get the taig bastard", which was a comment capable of being seen as referable to the last of the packages ("taig" is a derogatory term used of Irish Roman Catholics);

11. both appellants participated in giving a warning to Muirhead's son and his family on the evening of 14 April 2011.

[30] The question of what inference or inferences were to be drawn from this evidence was a classic jury question. The nature of the statements made by the appellants in the overheard conversations, in the text messages, and to Gordon Muirhead were consistent with the belief on their part that explosions might occur, and with a desire to cause physical harm to the recipients of the packages. The appellants had placed together materials, including peroxide, in the bottle sent to Ms Godman which if mixed in the correct proportions would have been capable of causing explosion or ignition. Three of the four packages tested positive for peroxide. That was consistent with an intention to cause injury and a belief that the device was capable of doing so. Mr Jackson argued that the jury could conclude that the appellants only created TATP to make it look as if they were serious. That was an inference which might have been open to the jury, but they chose to reject it. They were perfectly entitled to do so. In our view the evidence was sufficient to entitle them to draw the inference in relation to each appellant, first, that he had been party to an attempt to create an explosive substance for inclusion in the packages and secondly, that he believed the various parcels sent comprised an improvised explosive device which was capable of igniting or exploding causing injury. In these circumstances the appeal based on ground 1 falls to be rejected.

[31] Since the appeal on ground 1 falls to be rejected it follows that the appeal on ground 2 cannot succeed.