Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 54
Lord Justice General Lord Brodie Lord Bracadale	Appeal No: XC512/12   OPINION OF THE LORD JUSTICE GENERAL   in   NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE   by   NASSERDINE MENNI Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Taylor QC, McCaffrey (sol adv); John Pryde & Co, Edinburgh

For the Crown: Wade QC AD, Barron; Crown Agent

10 June 2014

Introduction

[1]        The appellant was tried in Glasgow High Court during May to July 2012 on a charge of conspiracy to further terrorist aims by criminal and other means including inter alia the use of explosive devices in the commission of an act of terrorism directed against members of the public in Sweden with intent to murder them.  The charge related to the detonation of an improvised explosive device in the streets of Stockholm as a result of which one of the alleged conspirators, Taimour Abdulwahab, was killed.  The charge had 21 sub-heads libelling specific actions on the part of the accused in furtherance of the alleged conspiracy. 

[2]        On 28 July 2012 the appellant was acquitted of the conspiracy charge but convicted of a number of the crimes libelled in the sub-heads.  The appeal is brought against the conviction on sub-head (c) and against the sentence of seven years that was imposed for it. 

[3]        Sub-head (c) of the indictment was in the following terms.

“Between 1 January 2005 and 16 December 2010 both dates inclusive at Flat 2/2, 106 Dalmarnock Road, Flat 1/4, 150 Charles Street and Flat 19/6, 64 Curle Street, all Glasgow, 15 Argyll Avenue, Luton, England and elsewhere you did enter into or become concerned in an arrangement as a result of which money or other property was made available or was to be made available to another whilst knowing or having reasonable cause to suspect that it will or may be used for the purposes of terrorism, in that you did on various occasions transfer sums of money totalling £5,725 to an account in the name of said Taimour Abdulwahab at the National Westminster Bank, 31 George Street, Luton, England, you did transfer the sum of £1,000 into an account in the name of Hemel Tellis, c/o Strathclyde Police, Glasgow at the Royal Bank of Scotland, Luton, England, all in the knowledge or with reasonable cause to suspect that said sums of money would or may be used for the purposes of terrorism; CONTRARY to the Terrorism Act 2000, section 17.”

 

[4]        On 6 December 2012 this court refused the appeal against conviction in relation to grounds of appeal 1 and 4 and continued the appeal for consideration of grounds 2 and 3 and of the appeal against sentence.  The evidential background is set out by Lord Bracadale in Menni v HMA ([2013] HCJAC 158 at paras [1] to [26]). 

 

The appeal against conviction – grounds 2 and 3

[5]        Grounds 2 and 3 relate to evidence disclosed by the Crown shortly before the start of the trial.  A substantial number of preliminary hearings took place between 16 November 2011 and 29 March 2012.  It was agreed that all outstanding preliminary matters would be dealt with at the commencement of the trial diet on 23 April 2012 and that evidence would begin on 2 May 2012. 

[6]        On 20 April 2012 a precognition officer at the Procurator Fiscal’s Office in Glasgow wrote to the accused’s representatives intimating a section 67 notice.  The letter ended as follows:

“ … Finally, I can advise you of the following information:

 

That on 15 December 2010 at about 00:07 hours the accused was heard to be upset and to say ‘why did you kill yourself?’ [sic]

 

Telephone billing shows that, on 15 December 2010 at about 00:07 hours the accused, using mobile phone number 07576 772109 made a telephone call to telephone number 07838 924376, which connected to voicemail.

 

The Crown would be willing to agree these facts by joint minute of agreement if that would be of assistance to you.”

 

[7]        By letter dated 9 May 2012, the appellant’s agents requested detailed information from the Crown in relation to the telephone call evidence.  The Crown did not reply.  On 8 June 2012 the matter was raised in court.  That prompted the Principal Procurator Fiscal Depute in Glasgow to write a letter dated the same day to the defence agents.  She said:

“Thank you for your letter of 9 May 2012.  Please accept my apologies for the delay in replying.

 

The Crown became aware of this information in September 2011.  Thereafter, the Crown conducted a detailed assessment of the information, in the context of the wider case.  The final decision to disclose the information was taken on 18 April 2012. 

 

The Crown is not aware of any other material, not yet disclosed, which meets the test for disclosure.  To the best of the Crown’s knowledge and belief, the Crown has fully complied with its disclosure obligations in relation to this material and, indeed, the case as a whole.

 

Should you wish to rely upon the material disclosed in our letter dated 20 April at trial, the Crown would be willing to enter into a suitably worded Joint Minute of Agreement.”

 

[8]        On 18 June 2012 senior counsel for the appellant called in open court for further particulars in relation to the voicemail message evidence. 

[9]        On 10 July 2012 a joint minute was entered into in the following terms:

“Around midnight on the 14^th/15^th December 2010 the accused telephoned a mobile telephone number belonging to Taimour Abdulwahab.  The call was transferred to voicemail at 0007 hours.  The accused was heard to say ‘why did you kill yourself.’  He was at that time in a very upset condition.”

 

[10]      On 11 July 2012 Mr Miller, who appeared as advocate depute, made his closing speech.  A written copy of the speech was provided in advance to the trial judge, but no copy was provided to the appellant’s representatives.  During the course of his speech, the advocate depute said:

“Now Joint Minute number 5, which was read to you yesterday, deals with a comment which the accused was heard to make in the early hours of 15 December, a number of days after he became aware of Taimour’s death, when, according to the Joint Minute, ladies and gentlemen, and the Crown does not dispute this in any way, the accused called one of Taimour’s numbers, was heard to be upset and was heard to say the words, “why did you kill yourself”.

 

Ladies and gentlemen, this incident days after the accused became aware of Taimour’s death needn’t mean that the accused had no prior knowledge of Taimour’s plans or intentions.  Ladies and gentlemen, clearly the accused’s friend was dead, Taimour, and on any view his death was a waste.  Having clearly set out as the evidence indicates to kill members of the public in Stockholm, Taimour Abdulwahab only succeeded, as the accused, in the words of the comments the accused was heard to make, according to the Joint Minute, only succeeded in killing himself in what was ultimately a failed mission.”

 

In quoting the words “why did you kill yourself?” the advocate depute emphasised the word “yourself”. 

[11]      At the conclusion of the speech, senior counsel for the appellant objected to the advocate depute’s interpretation of the voicemail message.  He submitted that the Crown should now disclose all the information that it had, otherwise it would be in breach of the Convention, and of Scots law, and the trial would be unfair.   The trial judge said that he was prohibited by law from allowing senior counsel to hear the message. 

[12]      On 13 July 2012, outwith the presence of the jury, senior counsel repeated his objections.  He submitted that they undermined the agreement in the joint minute and that the defence were at a disadvantage, being unaware of the full circumstances.  He invited the trial judge to desert the diet.  The learned trial judge, without hearing the advocate depute in reply, refused to desert the diet but allowed a continuation to 17 July 2012 so that senior counsel could consult with the Dean of Faculty and consider his position. 

[13]      On 17 July 2012 senior counsel complained that the copy of the Crown speech had been given to the trial judge without his knowledge.  He submitted that if any judge, as a result of a private meeting or disclosure had information that would prejudice a fair trial, he should recuse himself.  The trial judge intimated that he was in no better position than the defence were.  In the course of his charge, the trial judge said:

“Then there is the joint minute, that’s the joint minute number five.  You’ll recall what is agreed as a matter of fact in the case.  Around midnight on the 14^th to 15^th December 2010, the accused telephoned a mobile telephone number belonging to Taimour Abdulwahab.  The call was transferred to voicemail at 00.07 hours.  The accused was heard to say, ‘why did you kill yourself?’ He was, at that time, in a very upset condition.  Now, the question for you is, why would he be very upset and say that, as is all agreed, if he was a conspirator?  Is it an unlikely act, an unlikely reaction if he was a conspirator?  It’s entirely a matter for you.

 

In deciding what inferences you draw from the undisputed facts set out in the joint minute, you may wish to have regard to the evidence about his reactions; you’ve heard from witnesses who saw and spoke to him after the events, and you will, no doubt, wish to have regard to the actual words used as agreed.  He didn’t say, for example, ‘why, why did the mission fail?’ or anything like that.  It’s a matter entirely for you, and the advocate depute and Mr Taylor have made their submissions on that.”

 

[14]      During the course of their deliberations, the jury asked the trial judge for a direction on the following question:

“Can we charge against subhead (c) and not the main charge of conspiracy, as we have conflicting ideas from the deputy advocate, Mr Miller, unless we find him guilty of (c) we cannot find him guilty of conspiracy.”

 

The trial judge directed them as follows:

“… Let’s say you were satisfied that the Crown had proved subhead (c), that the accused knew that the money was for the purposes of terrorism or had reasonable cause to suspect it, let’s say you took the view that they had proved that much, but they hadn’t proved that the purposes included setting off the bomb in Sweden, basically that’s what it comes to.  If you were satisfied that the accused knew or had reasonable cause to suspect that some terrorist purposes were in mind, but not the bomb, then you would acquit of the conspiracy, but it would be open to you just to convict of subhead (c).So while you can, as a matter of law, convict of subhead (c) on its own without the conspiracy, you cannot convict of the conspiracy without subhead (c).

 

Having said all that, you’ll recall what I said, that if you’re minded to convict of subhead (c) on its own you’ll have to consider very carefully what terrorist purposes the Crown has in mind.  What, if, if you take away the bombing, what is left, really, in actual fact?  So while it’s technically open to you to do that you’ll have to think about that very carefully and say, ‘Well, really, without this bomb, is there anything left which we can call terrorist purposes, since that goes to the heart of the case, if you like.  What terrorist purposes are left, if the, the bomb goes away?’”

 

The Regulation of Investigatory Powers Act 2000 (the 2000 Act)

[15]      Section 92 of the Criminal Procedure (Scotland) Act 1995 provides inter alia that

no part of a trial shall take place outwith the presence of the accused.  That constitutional principle is abridged by the 2000 Act.  Section 17 of the Act explicitly provides for the withholding of certain evidence from the defence in a trial of this kind.  Section 18 provides inter alia as follows:

“… (7) Nothing in section 17(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to-

 

(a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution …

 

(b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone; [or]

 

(c) a disclosure to the panel of any inquiry held under the Inquiries Act 2005 or to a person appointed as counsel to such an inquiry where, in the course of the inquiry, the panel has ordered the disclosure to be made to the panel alone or (as the case may be) to the panel and the person appointed as counsel to the inquiry; or

 

(8)  A relevant judge shall not order a disclosure under subsection (7)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice …

 

(9)  Subject to subsection (10), where in any criminal proceedings-

(a) a relevant judge does order a disclosure under subsection (7)(b), and

(b) in consequence of that disclosure he is of the opinion that there are exceptional circumstances requiring him to do so,

he may direct the person conducting the prosecution to make for the purposes of the proceedings any such admission of fact as that judge thinks essential in the interests of justice …

 

(11)  In this section “a relevant judge” means-

 … (b) any judge of the High Court of Justiciary or any sheriff.”

 

The Act of Adjournal (Criminal Procedure Rules) 1996 (SI No 513)

[16]      Schedule 2 to this Act of Adjournal provides inter alia as follows:

“Interpretation

57.1 In this Chapter “the 2000 Act” means the Regulation of Investigatory Powers Act 2000.

 

Disclosed information: hearing

57.2 (1) This rule applies where a prosecutor of a case has had disclosed to him or her information under section 18(7)(a) of the 2000 Act and considers it appropriate to invite the judge to order disclosure in terms of section 18(7)(b) of the 2000 Act.

 

(2) The prosecutor may request a hearing before the judge.

 

(3) A request for a hearing under paragraph (2)-

(a) may be made at any time, either verbally or in writing;

(b) shall be to either the Clerk of Justiciary of the clerk of court, whoever being more appropriate in the circumstances.

 

(4) The hearing shall be-

(a) in court;

(b) in private.

 

(5) In paragraph (4), “private” means outwith the presence of any person (including, in a trial, the accused, his representatives and the jury) except the judge, the prosecutor and any other person whose presence the judge considers necessary for the proper determination of the matter.

 

(6) The hearing shall be recorded by mechanical means as if it were a trial in solemn proceedings.

 

(7) Paragraph (8) applies where the prosecutor indicates that information disclosed during the hearing has a particular status under any scheme operated by the United Kingdom Government for the protection of sensitive information.

 

(8) The record of the hearing and any retained documents shall be stored by the court in accordance with the security measures which the scheme stipulates for information of that status.”

 

The secret meeting

[17]      In the course of the trial the defence were given to understand that a meeting would take place between the trial judge and the advocate depute under the authority of the 2000 Act.  After it, the advocate depute told senior counsel for the appellant that the trial judge had directed him to disclose to the defence restricted information about the voicemail message of 14/15 December 2010.  The Crown neither admits nor denies that the meeting took place.  We may infer that it did. 

 

Submissions for the appellant

[18]      Counsel for the appellant submitted that the principles of natural justice, the Criminal Procedure (Scotland) Act 1995 and the Convention were contravened by the holding of the secret meeting during the trial (Bank Mellat (Appellant) v Her Majesty’s Treasury (Respondent) (No 1) [2013] UKSC 38).  Even if disclosure of the voicemail message had been ordered in terms of the 2000 Act, the correct procedures had not been followed by either the Crown or the Court.  Moreover, the advocate depute’s treatment of the voicemail message in his closing speech was improper.  The advocate depute also acted improperly in giving an advance copy of his closing speech to the trial judge without giving a copy to the defence. 

 

Conclusions on the appeal against conviction

[19]      In my opinion, the appeal is misconceived so far as it relates the disclosure of the voicemail evidence and the secret meeting.  If I am right in inferring that the meeting duly took place, that cannot constitute a ground of appeal since the provisions of the 2000 Act expressly warrant the course that was taken by the advocate depute and the trial judge.  There is no application before this court to declare that the 2000 Act or any provision in it is in breach of the Convention.  In any event if the meeting took place, the outcome was the disclosure to the defence of evidence that was relevant to the indictment.  I conclude therefore that the appeal fails on this point.

[20]      In my opinion, the central issue in this appeal is whether the advocate depute’s recital of the joint minute in his speech constituted a miscarriage of justice.  On this question it is necessary to consider whether the advocate depute’s comments bore any relevance to the conviction on sub-head (c). 

[21]      It is clear that the comments made in the voicemail message relate to the appellant’s knowledge of events in Stockholm, namely the detonation of the bomb.  It is clear, in my view, that the words “why did you kill yourself” have no bearing on sub-head (c) of the indictment, but are directly relevant to the alleged conspiracy to murder.  The voicemail message related to the detonation of the bomb in Sweden and to the question of the accused’s mens rea in relation to that.  The jury asked the trial judge for a direction on the relationship of sub-head (c) to the conspiracy charge.  I have quoted their question and the trial judge’s response to the effect that the detonation of the bomb was unrelated to sub-head (c). 

[22]      It is apparent that the jury followed the trial judge’s directions and convicted on sub-head (c) on that understanding.  That being the case, the joint minute has nothing to do with the conviction on sub-head (c). 

[23]      I conclude therefore that the appeal against conviction fails.  Having come to this conclusion, I think that it is unnecessary for us to consider the wider questions relating to the 2000 Act and to the meeting between the advocate depute and the trial judge. 

[24]      Two matters have caused me concern.  In the joint minute the parties agreed that the words used by the appellant were “why did you kill yourself?”  That and only that was the extent of the defence admission.  By placing emphasis on the word “yourself” the advocate depute went beyond the scope of the agreement by giving the jury his own nuance to the agreed words.  By doing so, he implied that they indicated the appellant’s mens rea in respect of the killing of people in Stockholm.  That was beyond the scope of the agreement in the joint minute.  It was quite improper.

[25]      I am also concerned by the fact that the advocate depute gave the trial judge an advance copy of his speech without giving a copy to the defence.  That too was improper.  Any document that is passed to the trial judge by either side should be disclosed to the other.  It seems to be agreed that in the printed copy of the speech the word “yourself” was emphasised.  If the defence had been given a copy of the speech before it was delivered, senior counsel for the appellant would have had the opportunity to object in advance to the advocate depute’s ill-judged reference to the joint minute. 

 

The appeal against sentence
[26]      In his sentencing statement, the trial judge said:

“[However, as you know, you were also] convicted of a contravention of Section 17 of the Terrorism Act 2000.  There was no dispute that you transferred sums totalling £5,725 to an account in the name of Taimour Abdulwahab and the sum of £1,000 to an account in the name of Hemel Tellis.  The jury by their verdict found that you did so in the knowledge or with reasonable cause to suspect that those sums of money would or might be used for the purposes of terrorism.  I appreciate your stated intention to appeal against your conviction but that is not a matter which I can take into account.

 

There is little point in my saying anything about the attitude which courts in this country adopt to offences of this kind.  They must obviously be treated as very serious.  Parliament has enacted that the maximum sentence for a contravention of Section 17 is one of 14 years imprisonment and it is my task to determine as best I can whereabouts in the range of criminality your conduct comes.

 

I have taken account of everything said on your behalf by Mr Taylor as well as considering the material in the social work report.  I have also had regard to the evidence in the case.  Perhaps the most important factor is the discriminating nature of the jury’s verdict.  The most serious charge on the indictment which you faced was one of conspiracy.  Put shortly, it was alleged that you conspired with the deceased Taimour Abdulwahab to further terrorist aims by criminal and other means including inter alia the use of explosive devices in the commission of an act of terrorism directed against members of the public in Sweden with intent to murder them.  I have no doubt that on the evidence that was Taimour Abdulwahab’s aim.  Others, who shared that aim, may have been involved with him.  The main focus of the Crown case was directed at attempting to prove that you were so involved.  The jury, however, rejected the Crown’s submissions in that regard.  They acquitted you of the conspiracy and it is only right that in sentencing you I have to leave out of account the events in Sweden.

 

Those events, though, illustrate the reason why terrorism offences are taken seriously.  The provision of funds provides assistance for those who would carry out terrorist attacks and even if the providers of the funds do not know precisely what they will be used for the sentence of the court must reflect their potential use.

 

Bearing in mind the amount of money provided by you I have decided that your activities lie in the mid-range of those struck at by the legislation.  I have considered the case of AT v the Secretary of State for the Home Department referred to by Mr Taylor but it does not contain any real detail as to the circumstances of the contravention of the section which gave rise to the sentence referred to other than those matters referred to by Mr Taylor and a reference on page 15 to the effect that it was submitted on the plaintiff’s behalf at his sentencing hearing that he was particularly concerned with raising funds for the families of those who were imprisoned in Libya or who had died there.  That was the basis on which he was sentenced.”

 

 

[27]      Counsel for the appellant submitted that the trial judge, having observed that the sentence of seven years was a mid-point between a non-custodial disposal and the maximum sentence of 14 years, had given no reason why he had fixed the sentence at that figure.  Cases in the Court of Appeal showed a sentencing range for similar low-level terrorist offences of 18 months to 3 years (Banks on Sentence , 8th ed, vol 2;  Reg v Mohammed [2008] EWCA Crim 1465; Att-Gen’s Ref Nos 85 to 87 of 2007 [2007] EWCA Crim 3300).  In the appellant’s written submission, we were referred to Ahmed Raza Faraz v Regina ([2012] EWCA Crim 2820) in which the appellant was sentenced to three years in total on an indictment for inter alia, contraventions of section 2 of the Terrorism Act 2006 (dissemination of a terrorist publication by distribution) and offences under section 58(1)(b) of the Terrorism Act 2000 (possession of information likely to be useful to a person committing or preparing an act of terrorism). 

[28]      Counsel submitted that this was a case of low-level involvement.  The appellant had been in custody for three years and one month at the date of the appeal hearing.  He had been virtually in solitary confinement at the outset.  He could not speak English.  The possibility of a lengthy sentence on the conspiracy charge had been hanging over him.  The emotional effects on him had been severe.

 

Conclusions on the appeal against sentence
[29]      Since the appellant was found not guilty of the conspiracy charge, the gravity of this conviction is greatly reduced.  The maximum sentence for a conviction on indictment under section 17 of the Terrorism Act 2000 is 14 years imprisonment.  I accept the submission of counsel for the appellant that the conduct of which the appellant was convicted, though serious, was at the lower end of the scale.  The trial judge thought that the amount of money referred to in sub-head (c) indicated that the appellant’s activities lay in the mid-range of those struck at by the legislation.  I am not persuaded of that.  In my view, the sentence of seven years was excessive.  

[30]      Taking into account that the sum of money was £5,275 and that on the narrative in sub-head (c) no specific terrorist purpose was libelled, I consider that a sentence of three years is appropriate. 

 

Disposal

[31]      I propose to your Lordships that we should refuse the appeal against conviction, sustain the appeal against sentence and substitute a sentence of three years imprisonment back-dated to 8 March 2011, the date on which the appellant was taken into custody.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 54
Lord Justice General Lord Brodie Lord Bracadale	Appeal No: XC512/12   OPINION OF LORD BRODIE   in   NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE   by   NASSERDINE MENNI Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Taylor QC, McCaffrey (sol adv); John Pryde & Co, Edinburgh

For the Crown: Wade QC AD, Barron; Crown Agent

10 June 2014

[32]      I agree with the opinion of your Lordship in the chair, and have nothing further to add.

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 54
Lord Justice General Lord Brodie Lord Bracadale	Appeal No: XC512/12   OPINION OF LORD BRACADALE   in   NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE   by   NASSERDINE MENNI Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Taylor QC, McCaffrey (sol adv); John Pryde & Co, Edinburgh

For the Crown: Wade QC AD, Barron; Crown Agent

10 June 2014

[33]      I agree with the opinion of your Lordship in the chair and with the disposal proposed by your Lordship.  I have nothing further to add.