LORD PHILLIPS, CJ :
Introduction
- On 7 February 2006 in the Central Criminal Court before Hughes J and a jury the appellant was convicted of:-
i) Six counts of soliciting to murder contrary to section 4 of the Offences Against the Person Act 1861 (Counts 1, 2, 3, 5, 7 and 8)
ii) Three counts of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred contrary to section 18(1) of the Public Order Act 1986 (Counts 4, 10 and 13),
iii) One count of possessing threatening, abusive or insulting recordings of sound with intent to stir up racial hatred contrary to section 23(1) of the Public Order Act 1986 (Count 14),
iv) One count of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism contrary to section 58 of the Terrorism Act 2000 (Count 15).
The jury acquitted the Appellant of three counts of soliciting to murder, (counts 6, 9 and 11) and of one count of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred (Count 12). On each of counts 1, 2, 3, 5, 7 and 8 he was sentenced to seven years imprisonment. On counts 4, 10 and 13 he was sentenced to 21 months imprisonment. On count 14 he was sentenced to 3 years imprisonment and on count 15 he was sentenced to 42 months imprisonment. All of these sentences are to be served concurrently.
- The appellant appeals against conviction with permission granted by the Full Court on 28 July 2006 on six grounds. He is represented, as he was at his trial, by Mr Edward Fitzgerald QC and Mr Paul Hynes.
- The appellant was the Imam of the Finsbury Park Mosque. The counts other than counts 14 and 15 relate to public speeches made by him at that mosque and in other venues between 1997 and 2000. Count 14 relates to recordings of those speeches which were seized in the course of a police raid on the appellant's home on 27 May 2004. Count 15 relates to ten out of the eleven volumes of the Afghani Jihad Encyclopaedia, which were seized on the same occasion but which had been in the possession of the appellant since at least 1999.
- The primary facts relied upon by the prosecution were not in issue. So far as the appellant's speeches were concerned, the issues were as to the meaning of the words used by the appellant and, more critically, whether he had intended to incite to kill or to stir up racial hatred. So far as the Encyclopaedia was concerned, the issue was whether it fell within section 58 of the Terrorism Act 2000. The jury found against the appellant on these issues.
- The grounds of appeal challenge the appellant's conviction for three reasons. Grounds 1 to 3 contend that agents of the state acted in such a way as to make it unfair, and thus an abuse of process, to prosecute the appellant. They allowed an excessive period of delay to occur between the alleged offences and commencing the prosecution. They gave the appellant express or implied assurances that no action would be taken against him in relation to his speeches or the possession of cassettes of them or in relation to the possession of the Encyclopaedia. The Home Secretary elected to remove his citizenship by way of punishment for the conduct in respect of which he was subsequently prosecuted. Because of the delay the appellant was subjected to a sustained campaign of adverse media publicity, some of which was generated by the conduct of agents of the state.
- Grounds 4 and 5 allege that, by reason of events which occurred in the period during which prosecution was delayed and by reason of the adverse publicity to which the appellant was subjected, he could not receive a fair trial, or there was a real risk that he would not receive a fair trial. This is relied upon as a separate reason why the prosecution was an abuse of process, albeit one largely consequent upon the conduct that formed the subject of grounds 1 to 3.
- In addition to these grounds of appeal, Mr Fitzgerald raises in ground 6 a discrete point of law, which was rejected by the judge. He submits that, insofar as the appellant's speeches solicited those who heard them to commit murder, the solicitation was to do so in foreign countries. The appellant's speeches were directed to a wide audience. No evidence was given as to the nationality of any members of that audience. Mr Fitzgerald submits that no offence will be committed under section 4 of the 1861 Act in respect of soliciting murder outside this jurisdiction unless the person solicited is a British national. Thus the prosecution failed to prove an essential ingredient of the offence. It is convenient to consider this point at the outset. It has been described as the 'jurisdiction point' although it is, in fact, a point of statutory interpretation.
The ambit of section 4 of the Offences Against the Person Act 1861.
- Section 4 of the 1861 Act, in its original form, provided as follows:-
"All persons who shall conspire, confederate, and agree to murder any person, whether he be a subject of Her Majesty or not, and whether he be within the Queen's dominions or not, and whosoever shall solicit, encourage or endeavour to persuade, or shall propose to any person, to murder any other person, whether he be a subject of Her Majesty or not and whether he be within the Queen's dominions or not, shall be guilty of a Misdemeanour, and being convicted thereof shall be liable at the discretion of the Court, to be kept in Penal Servitude for any term not more than ten or less than three years – or to be imprisoned for any term not exceeding the two years, with or without Hard Labour."
- Section 9 of the Act provided:
"Where any Murder or Manslaughter shall be committed on Land outside of the United Kingdom, whether within the Queen's Dominions or without, and whether the Person killed was a subject of Her Majesty or not, every offence committed by any subject of Her Majesty, in respect of every such case, whether the same shall amount to the crime of Murder or of Manslaughter, or of being accessory to murder or manslaughter, may be dealt with, inquired of, tried, determined and punished in any County or Place in England or Ireland in which such Person shall be apprehended or be in Custody, in the same manner in all respects as if such Offences had been actually committed in that County or Place."
- Mr Fitzgerald's argument is as follows. At common law the inchoate offences of conspiracy and incitement can only be committed if the activities that are planned or incited will constitute a crime under English law. As a matter of general principle English criminal jurisdiction only extends to acts committed within the English jurisdiction. By way of exception to this, English common law recognises as a crime unlawful killing that takes place outside the jurisdiction, but only where the act is committed by a British subject. This is made clear in section 9 of the 1861 Act, which was no more than declaratory of the common law, for its provisions were expressly restricted to an offence 'committed by any subject of Her Majesty'. Section 4 was also no more than declaratory of the common law. Thus, although it did not expressly so state, section 4 only made it a misdemeanour to 'solicit, encourage or endeavour to persuade' any person to commit murder if the person in question was 'a subject of her majesty'.
Mr Fitzgerald derives support from the following comment in Professor Michael Hirst's work on 'Jurisdiction and the Ambit of the Criminal Law' at p. 149:-
"…it is doubtful whether section 4 adds anything of substance to the common law of incitement. Although it may apply to persons who, in England and Wales, incite the commission of murder abroad, the murder incited would have to be an offence triable under English law, because section 4 makes no provision to the contrary. Murder committed by a British citizen on land abroad would indeed be such an offence, but murder committed by a foreigner abroad would not be."
- Mr Fitzgerald submits, in his skeleton argument, that there is ample authority for the general common law principle that 'inchoate offences of incitement, conspiracy and attempt are not committed and/or triable when they relate to a substantive offence which, if committed, would not be triable in this country'.
- Mr Fitzgerald places, at the forefront of his case, the decision of Lord Tucker, with which the other members of the House agreed, in Board of Trade v Owen [1957] AC 602. In that case the defendants had been convicted of the common law offence of conspiracy to defraud where the conspiracy had taken place within the jurisdiction but the fraudulent acts that the conspirators planned were to be carried out in the Federal Republic of Germany. The Court of Appeal quashed the convictions for conspiracy and the House of Lords upheld this decision. The reasoning of the House is succinctly summarised in the headnote as follows:-
"a conspiracy to commit a crime abroad is not indictable in England unless the contemplated crime is one for which an indictment would lie here, for conspiracy is recognised as an offence in order to prevent the commission of the substantive offence before it reaches the stage of an attempt and this is all part and parcel of the preservation of the Queen's peace within the realm with which, generally speaking, the criminal law is concerned."
- In the course of his speech, Lord Tucker, at pp. 627-8 cited with approval a passage of the judgment of the Court of Appeal in which express consideration was given to section 4 of the 1861 Act:-
"Referring to section 4 of the Offences Against the Person Act, 1861, which makes a conspiracy in this country to murder any person abroad whether within the Queen's domains or not, and whether the person is or is not a subject of the Queen, a misdemeanour punishable with a maximum of 10 years' imprisonment, the court observed that as at any rate since 33 Henry 8, c.23, a British subject had been indictable in this country for murder committed abroad and the Offences Against the Person Act, 1828, expressly provided for the trial of any of His Majesty's subjects charged in England with murder committed on land out of the United Kingdom, whether within the King's dominions or without, it followed that being an accessory to murder abroad or conspiracy to murder abroad was triable here. They were accordingly of opinion that section 4 of the Act of 1861 did not alter the common law but provided a special penalty and made it clear that such a conspiracy by anyone in this country was indictable. This reasoning was not contested before your Lordships by either side and is clearly right."
- Mr Fitzgerald submits that, although the Court of Appeal did not expressly so state, the proposition that conspiracy to murder abroad was triable in England pursuant to section 4 of the 1861 Act only applied to conspiracy to commit a murder that would be triable in England, that is a murder committed by a British subject. Equally, inciting a person to commit a murder abroad was only triable in England if the person incited was a British subject. This followed inevitably from the reasoning of the Court of Appeal as it did from the proposition that section 4 did not alter the common law.
- Mr Fitzgerald relies on the authorities considered by Lord Tucker and upon the conclusion to which these led him as expressed at p. 634:-
"I have reached the conclusion that the decision of the Court of Appeal that a conspiracy to commit a crime abroad is not indictable in this country unless the contemplated crime is one for which an indictment would lie here is correct."
- This proposition, if applied to a statutory conspiracy within the provisions of section 4 of the 1861 Act, lends strong support to Mr Fitzgerald's submissions. The observations of both the Court of Appeal and the House of Lords in relation to section 4 were, however, obiter and did not, in any case, expressly address the suggested distinction between inciting a British subject to commit a murder abroad and inciting a foreign national to do the same. Thus the decision in Board of Trade v Owen does not conclusively resolve the issue with which we are concerned.
- We do not need to refer to the jurisprudence, considered by Lord Tucker in Board of Trade v Owen which supports the general principle of common law that an inchoate offence is not committed unless the conduct planned or incited would, if carried out, be indictable in England, for we accept that it establishes that general principle. At issue, however, is whether in the case of murder, section 4 of the 1861 Act establishes or recognises an exception to that general principle.
- In rejecting Mr Fitzgerald's submission Hughes J concluded, contrary to the view expressed by the Court of Appeal and the House of Lords in Board of Trade v Owen, that section 4 of the 1861 Act created an exception to the general common law principle relied upon by Mr Fitzgerald. Mr Perry QC for the Crown relies upon the reasoning of the judge. He submits that six matters support the judge's conclusion:-
i) The legislative history of section 4;
ii) The natural meaning of the words used in section 4;
iii) The absurdity that would flow from Mr Fitzgerald's submission;
iv) Early commentaries;
v) The fact that Mr Fitzgerald's argument has not been advanced for a period of 150 years;
vi) The view taken by the Law Commission of the effect of section 4.
We shall consider each of these points and propose to start with the last two for, as Mr Perry accepted, they can carry no more than persuasive weight.
- The Criminal Law Act 1977 made comprehensive provision in relation to the offence of conspiracy. Section 1(1) provided:
"Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions, he is guilty of conspiracy to commit the offence or offences in question."
- Section 1(4) provided:-
"In this Part of this Act "offence" means an offence triable in England and Wales, except that it includes murder notwithstanding that the murder in question would not be so triable if committed in accordance with the intention of the parties to the agreement."
This sub-section has its origin in clause 1(6) of a draft bill published by the Law Commission in its 'Report on Conspiracy and Criminal Law Reform' (Law Com. No. 76). The explanatory notes to that clause commented that it:-
"related to conspiracy to murder, which under section 4 of the Offences Against the Person Act 1861 is an offence even where the murder is to be committed abroad by a person who is not a British subject. This section is repeated insofar as it relates to conspiracy to murder, but its effect is preserved by the present subsection."
- The 1977 Act amended section 4 of the 1861 Act by deleting the first part, which dealt with conspiracy, so that the section provided:-
"… whosoever shall solicit, encourage, persuade, or endeavour to persuade, or shall propose to any person, to murder any other person, whether he be a subject of Her Majesty or not, and whether he be in the Queen's dominions or not, shall be guilty of a misdemeanour and being convicted thereof shall be liable to … [imprisonment for life] … . "
- Mr Fitzgerald accepts that the draftsman of the 1977 Act was under the impression that section 1(4) did no more than reproduce the effect of the first part of section 4 of the 1861 Act. He submits, however, that in this respect the draftsman was in error. Whereas the 1977 Act extended the crime of conspiracy to commit a murder abroad to embrace a plot that a foreign national should commit the substantive offence, the remaining provisions of section 4 of the 1861 Act did not have a similar ambit.
- It appears to us that the view of the Law Commission as to the effect of section 4 of the 1861 Act was a view generally shared by lawyers over the century that proceeded the Law Commission's Report. This can be deduced from the fact that in a number of cases no challenge was made of an indictment that would have been defective had a necessary ingredient of the crime of incitement to commit murder abroad been that the person incited was a British subject.
- Thus, in The Queen v Most (1881) 7 QBD 244 the relevant count alleged that the defendant:-
"knowingly and wickedly did encourage certain persons, whose names to the jurors were unknown, to murder certain other persons, to wit sovereigns and rulers of Europe."
The jury were directed by Lord Coleridge CJ, that if they thought by the publication of the article the defendant did intend to, and did, encourage or endeavour to persuade any person to murder any other person, whether a subject of Her Majesty or not, or whether within the Queen's dominion or not, and that such encouragement and endeavouring to persuade was the natural and reasonable effect of the article they should find him guilty.
- This direction was approved by the Court of Crown Cases Reserved, presided over by the Chief Justice. Denman J at p. 256 expressed the view that:-
"The statute was passed for the very purpose, I think, of rendering it a more serious offence than the common law rendered it to do such an act as this"
At p. 257 he added:
"I think the circulation to the world, to multitudes of persons wholly undefined, and to whom it would come, would be sufficient… ."
- In The Queen v Boutzeff (1898) 127 Cent. Cr. Ct. Ses. Pap. 284 and Antonelli v Barberi (1907) 70 JP 4 indictments charged defendants with encouraging 'persons unknown' to murder certain foreign sovereigns. No objection was taken to the indictment in either case.
- The fact that Mr Perry's submissions appear to reflect a general understanding of the effect of section 4 of the 1861 Act that has prevailed for the last 150 years lends those submissions powerful support but, as the judge observed, if Mr Fitzgerald's submission is well founded, it does not become wrong simply because it has not occurred to anyone previously. Accordingly we turn to consider the legislative history of section 4, together with early commentaries on its effect.
- The early development of the common law saw the English judges asserting jurisdiction to try and to punish offences on behalf of the Crown where these constituted a breach of the King or Queen's peace. Conduct outside the jurisdiction did not normally fall within this description. Furthermore, it would have been contrary to international comity for English judges to rule on the legality of actions that had taken place within the jurisdiction of a foreign sovereign. There were, however, certain exceptions which came to be recognised to this general principle.
- In the reign of Henry VIII a statute was enacted that was concerned with the venue for trials for 'treasons, misprision of treasons or murders'. 33 Hen.8, c.23 provided that the Commissioners of Oyer and Determiner in one Shire should have power to hear and determine 'Treasons, Misprisions of Treasons and Murders within the Shires and Places limited by their Commissions…in whatsoever Shire or Place within the King's Dominions, or without, such Offences …were done or committed…'. This appears to be the first statutory recognition that murder was an exception to the general rule that conduct could be criminal only if committed within the jurisdiction of the King. The extent of the exception is not clear. In 1829 the provision in relation to murder was repealed by 9 Geo. 4, c.31, but replaced with the following provision:
"That if any of His Majesty's subjects shall be charged in England with any murder of manslaughter, or with being an accessory before the fact to any murder, or after the fact to any murder or manslaughter, the same being respectively committed on land out of the United Kingdom, whether within the King's dominions or without, it shall be lawful for any justice of the peace of the county or place where the person so charged shall be, to take cognisance of the offence so charged, and to proceed therein as if the same had been committed within the limits of his ordinary jurisdiction."
Once again it should be noted that this provision was dealing with jurisdiction in relation to the trial of what was already established to be a crime. It makes it clear, however, that the jurisdiction only exists over one of His Majesty's subjects.
- Between the two Acts an issue was raised as to whether and in what circumstances under our criminal law conduct within the jurisdiction could render a person liable as an accessory before the fact to a crime committed outside the jurisdiction or guilty of conspiracy to commit such a crime. In R v Tchorzoewski (1858) 8 St. Tr. N.S.1091 the defendant was charged with publishing in England a pamphlet in French which incited the murder of the Emperor of France. On certain undertakings by the defendant the Attorney General acceded to the entry of a verdict of not guilty. Lord Campbell CJ, in assenting to this course, remarked:-
"The defendant being a foreigner, I will only add what I have before observed, that it is the glory of this country that it affords an asylum to proscribed and persecuted exiles from all parts of the world. But those who find an asylum here must ever bear in mind that while they have the protection of the law of England they are bound to obey that law, and that they are equally liable with the subjects of Her Majesty for any crime which may be committed by them while they are resident within the realm. I hope they will bear this in mind and will understand that it is a crime on the part of a British subject, or for a foreigner owing temporary allegiance to the Crown of England, to plot and conspire for the commission of a crime in a foreign country, or for the commission of a crime in this country."
- In R v Bernard (1858) 1 F. & F. 240 the defendant, an alien, was charged, on the basis of conduct alleged to have been committed within the jurisdiction, with being an accessory before the fact to the murder in Paris of several persons killed by a grenade thrown by an alien. Questions of law reserved included the question of whether the defendant had committed any offence having regard to the fact that the murder had been committed in France by an alien of an alien. The jury acquitted the defendant, so the question never fell to be considered.
- Sir James Stephen in his History of the Criminal Law of England, published in 1883 made the following comments at pages 12-13:-"CRIMES COMMITTED ON LAND OUT OF ENGLAND –
With regard to offences of this class also there is little difficulty. I am not aware of any exception to the rule that crimes committed on land by foreigners out of the United Kingdom are not subject to the criminal law of England, except one furnished by the Merchant Shipping Act of 1854 (17 & 18 Vic, c.104, s.267), noticed below. There may be exceptions in the orders made under the Foreign Jurisdiction Acts.
A question of the greatest importance and delicacy is connected with this matter which has never yet been judicially decided, and which, when it occurs, will deserve the most careful consideration. It is this: How far are acts committed abroad, which if committed in England would be crimes, recognised as crimes by the law of England for the purpose of rendering persons in England criminally responsible for steps taken in relation to them, which if taken in relation to crimes committed in England would make them accessories before or after the fact, or which would amount to a conspiracy to commit it?
…
As regards the particular case of murder and incitement to commit murder, the matter is now set at rest by 24 & 25 Vic, c.100, ss 4 and 9. These sections provide in substance that persons who conspire in England to murder foreigners abroad, or in England incite people to commit murders abroad, or become in England accessories (either before or after the fact) to murder or manslaughter committed abroad, shall be in the same position in every respect as if the crime committed abroad had been committed in England."
The issue before us is whether Sir James was correct in his analysis of the 1861 Act.
- Mr Greaves, the draftsman of the 1861 Act has given his explanation of the purpose of inserting the words "whether he be a subject of Her Majesty or not, and whether he be within the Queen's dominions or not" in section 4 - see Greaves, Crim. L. Cons. Acts (2nd ed.) 34:
"The words were introduced ex abundanti cautela only, and this section cannot be cited as a legislative declaration that a conspiracy in England to murder a foreigner in a foreign country is not a conspiracy indictable at common law, or that the killing of a foreigner in a foreign country, under such circumstances as would amount to murder if the killing were in England, is not murder in contemplation of the law of England. The introduction of the words in question makes it unnecessary to discuss either of those questions; …"
- The statement of a Parliamentary draftsman as to the meaning words were intended to bear is not a legitimate aid to construction and, in any event, this passage is suspect. If the test of whether a murder abroad was indictable depended upon whether, if the killing had been in England, the circumstances would amount to murder, a murder committed abroad by an alien would have been indictable. Section 9 of the 1861 Act makes it plain that this was not the case.
- The effect of section 9 of the 1861 Act was considered by the Courts-Martial Appeal Court, presided over by Lord Goddard CJ, in R v Page [1954] 1 QB 170. Mr Diplock QC had argued that section 9 extended the law of murder beyond the offence of murder at common law; at common law the victim had to be a British subject, otherwise the requirement that the killing should be 'within the Queen's peace would not be satisfied. The Court rejected this submission. Lord Goddard referred to a statement of Lord Ellenborough reported in R v Serva (1846) 2 C. & K. 53 at 113 "'against the peace of the King' applies to the offender: it relates to his capacity to commit the crime". Lord Goddard commented: "That, of course, is entirely intelligible. Nobody would suggest that an English court could try an alien for an offence not committed on English soil."
- Lord Goddard referred to conflicting decisions prior to 1861 as to whether the victim of a killing committed abroad had to be a British subject if the killing was to amount to murder. He observed at pp. 176-7:-"It was no doubt to allay any doubts that there may have been on the subject that section 9 of the Offences against the Person Act 1861 is in such wide terms…We have no doubt that when the word "murder" is found in a statute it has the meaning which has always attached to it throughout the ages, namely, an unlawful killing with malice aforethought."
Discussion
- It is plain that, from the time of Henry VIII, a murder could be indicted within England, albeit committed outside the jurisdiction, provided that the defendant was a subject of the Crown. There was some uncertainty as to whether the victim had to be a subject also, although the better view was that this was not necessary. There was uncertainty as to whether an indictment would lie for acts in England amounting to conspiring to commit a killing abroad, or being an accessory to such a killing, where the killing was to be carried out by an alien. So far as crime in general was concerned, the position remained unclear until the decision in Board of Trade v Owen. Did section 4 of the 1861 Act create inchoate offences in relation to murder that have proved to be an exception to what is now recognised to be the general position at common law, or were those inchoate offences implicitly restricted to the committing or planning of murders by British subjects? For the following reasons we have concluded that the former is the true position.
- The motivation for the enactment of section 4 of the 1861 Act appears to have been the activities of aliens in England in support of murders, or attempts to murder, committed by aliens outside the jurisdiction. Hirst, at p. 139, refers to the proviso to section 1(4) of the 1977 Act. In a footnote he remarks:
"The ancestry of the proviso to s 1(4) can be traced back to Palmerston's Conspiracy to Murder Bill of 1858. This Bill, which never became law, was inspired by French protests over the impunity enjoyed by Italian émigrés in England, some of whom had recently been implicated in the Orsini bomb plot, an attempt to assassinate Napoleon III in Paris, in which a number of bystanders and guards had been killed when a bomb was thrown at the Emperor's carriage. (Cf. R v Bernard (1858) 1 F & F 240)"
If this was the explanation for section 4, it would have made no sense to have restricted the offence to situations where the murderers were to be British subjects. It seems to us that Professor Hirst's footnote is in conflict with the passage in his book at p. 149, upon which Mr Fitzgerald relies.
- The second reason is the wording of section 4 itself. In contrast to other sections, such as sections 5 and section 9, and indeed the earlier statutes, section 4 is enacting the ingredients of substantive offences, not laying down rules of jurisdiction. There is nothing in the wording that suggests that the conspirators, or the person incited, should be British subjects. Nor was the common law so clear that this was to be implied. On the contrary, as the questions posed in R v Bernard demonstrate, this area of the law was in confusion.
- The third reason is that the construction contended for by Mr Fitzgerald would have produced in 1861 and would still produce an anomaly. There was no principle of international comity that required the legislature to restrict the inchoate offences, committed within this jurisdiction, to those relating to a murder to be carried out abroad by a British rather than a foreign subject. On the contrary, comity would weigh in favour of drawing no such distinction. Lord Diplock made the same point in R v Treacy [1971] AC 537 at 562:-
"There is no rule of comity to prevent Parliament from prohibiting under pain of punishment persons who are present in the United Kingdom, and so owe local obedience of our law, from doing physical acts in England, notwithstanding that the consequences of those acts take effect outside the United Kingdom. Indeed, where the prohibited acts are of a kind calculated to cause harm to private individuals it would savour of chauvinism rather than comity to treat them as excusable merely on the ground that the victim was not in the United Kingdom itself but in some other state."
- The reason why murder is singled out as an offence even when committed outside the jurisdiction is no doubt the particularly serious nature of the crime of murder. It is anomalous that a British subject who is apprehended within the jurisdiction can be prosecuted for committing a murder abroad, but an alien in the same position cannot. The only reason for this anomaly is international comity. It would be doubly anomalous, where no reason of comity exists, to distinguish between inciting a British subject within this jurisdiction to commit such a crime and inciting an alien to do so.
- In summary, everything points to giving the words of section 4 of the 1861 Act the broad meaning that they naturally bear, other than an argument based upon a principle of law which was not clearly established in 1861 and which made no sense if applied to the crime of murder, having regard to the unique extra-territorial jurisdiction long established in relation to that crime.
- For these reasons we reject the challenge to the judge's interpretation of section 4 of the 1861 Act.
The effect of the seizure of the Encyclopaedia and the cassettes in 1999.
- We propose next to turn to the grounds of appeal that rely upon the fact that the police had seized and examined the Encyclopaedia and recordings of the appellant's speeches in 1999. These grounds are of particular relevance to counts 14 and 15.
- In December 1998 there was a terrorist incident in the Yemen. A number of individuals who purported to act in the name of a fundamentalist Islamic cause were arrested in connection with it. A number of hostages, some of them British, were then seized in an effort to force the release of those arrested. Some of these hostages were killed. On 15 March 1999 the appellant was arrested on suspicion of involvement in these events in the Yemen. Under search warrants a large number of audio and video cassettes were seized from his home. These included recordings of at least three of the lectures which were to become the subject of counts 1, 5 and 7. Also seized was a quantity of written material, including the Encyclopaedia.
- The police kept this material for about 9 months, and then returned it to the appellant on 30 December 1999. The appellant was informed that no further action would be taken against him. During that nine months cassettes that recorded sermons that were subsequently to be the subject of counts 1, 5 and 7 received close examination.
- Mr Fitzgerald relies upon the facts that we have just summarised, among others, in support of an application for a stay of proceedings that was rejected by the judge in a ruling given on 13 July 2005. They are significant features in the overall story of delay in prosecuting the appellant that we shall consider later in this judgment. Before us Mr Fitzgerald relies upon them as discrete grounds of appeal in relation to counts 14 and 15. He submits that the actions of the police in returning the material after scrutiny naturally and reasonably created in the appellant the clear impression that the contents of the returned videos and the Encyclopaedia were not criminal. They gave the appellant a legitimate expectation that he would not be prosecuted for possession of these. In these circumstances it was an abuse of process five years later to prosecute him for their possession.
- In answer, Mr Perry emphasises that the police had arrested the appellant on suspicion of involvement in the terrorist activities in the Yemen. The object of studying the material seized was to see if there was evidence that linked him with those activities. The fact that no further action was taken in relation to the appellant's suspected involvement in the Yemen terrorism and that his property was handed back did not constitute an assurance that the property would not form subject matter of additional terrorist charges. So far as the Encyclopaedia was concerned, that consisted of 11 volumes containing 8000 pages in Arabic script. There was no evidence that this had received close examination. He further submits that even if the police action had led the appellant to believe that no further action would be taken in relation to the tapes and the encyclopaedia, that did not render bringing the charges in relation to that material an abuse of process.
- That part of the judge's ruling that is particularly relevant to this part of this appeal is to be found between pages 22 and 32 of his ruling. He was dealing at the same time with the assertion that other acts on the part of the executive had constituted assurances that the appellant would not be prosecuted for his speeches. He gave detailed consideration to the law, which we shall review shortly. He held that nothing had occurred that rendered it an abuse of process to proceed with the charges brought against the appellant.
- As the judge held, circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has been given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances, other than to say that they must be such as to render the proposed prosecution an affront to justice. The judge expressed reservations as to the extent to which one can apply the common law principle of 'legitimate expectation' in this field, and we share those reservations. That principle usually applies to the expectation generated in respect of the exercise of an administrative discretion by or on behalf of the person whose duty it is to exercise that discretion. The duty to prosecute offenders cannot be treated as an administrative discretion, for it is usually in the public interest that those who are reasonably suspected of criminal conduct should be brought to trial. Only in rare circumstances will it be offensive to justice to give effect to this public interest.
- Such circumstances can arise if police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance upon that undertaking, acts to his detriment. Thus in R v Croydon Justices, ex parte Dean (1994) 98 Cr. App. R. 76, a 17 year old youth, who had assisted in destroying evidence after a murder had taken place, was invited by the police to provide evidence for the prosecution and assured that, if he did so, he would not himself be prosecuted. He thereupon provided evidence against those who had committed the murder and admitted the part that he had played. In these circumstances, which Staughton LJ presiding in this court described as 'quite exceptional', it was held to be an abuse of process subsequently to prosecute him.
- In R v Townsend, Dearsley and Bretscher [1997] 2 Cr App R 540 the Vice-President, Rose LJ, giving the judgment of this court approved the propositions: where a defendant has been induced to believe that he will not be prosecuted this is capable of founding a stay for abuse; where he then co-operates with the prosecution in a manner which results in manifest prejudice to him, it will become inherently unfair to proceed against him. He added that a breach of a promise not to prosecute does not inevitably give rise to abuse but may do so if it has led to a change of circumstances (pp 549, 551). These propositions echo the observation of Lord Lowry in R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] AC 42 at p. 74:-
"It would, I submit, be generally conceded that for the Crown to go back on a promise of immunity given to an accomplice who is willing to give evidence against his confederates would be unacceptable to the proposed court of trial, although the trial itself could be fairly conducted."
- R v Bloomfield [1997] 1 Cr App R 135 was a case where it was held to be an abuse of process to proceed with a prosecution in the face of an unequivocal statement by counsel for the Crown to the Court that the prosecution would tender no evidence. In that case there was no change of circumstances which might have justified departing from that statement.
- These authorities suggest that that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and (ii) that the defendant has acted on that representation to his detriment. Even then, if facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation.
- The facts in relation to counts 14 and 15 fall a long way short of satisfying the criteria that we have set out above. It would have been open to the police to initiate a prosecution in 1999 in relation to the possession of the cassettes and the Encyclopaedia that were seized, albeit that the charge in the case of the latter would have had to have been brought under an earlier statute. The fact that they did not do so could not, however, be taken as an assurance, let alone an unequivocal assurance, that they would not do so in the future. It is significant in this context that these materials were seized, not in the course of some general investigation, but in an investigation aimed specifically at the possibility that the appellant was implicated in the events in the Yemen. The appellant was aware of this.
- It is not clear why, in 1999, the police did not attach the significance to the appellant's speeches and possession of cassettes and the Encyclopaedia that they, and the Crown Prosecution Service, were to give them in 2004. The judge remarked that, in the absence of any explanation for the passage of time, the conduct of the prosecution was vulnerable to some criticism for the delay since 2000 in bringing charges. We agree. But any shortcomings on the part of those responsible for the prosecution in this respect could not be treated as an assurance that the appellant was not in breach of the law nor that, if he was in breach of the law, this would not give rise to a prosecution.
- There is no reason to conclude that the appellant placed any reliance on the reaction, or lack of reaction, of the police to the cassettes and the Encyclopaedia when deciding to retain them in his possession. He was simply continuing a course of conduct that had commenced before the police had intervened.
- For these reasons we reject Mr Fitzgerald's contention that the judge erred in failing to rule that the prosecution of the appellant on counts 14 and 15 constituted an abuse of process.
Prejudice, or the risk of prejudice, caused by delay in bringing the prosecution
- Mr Fitzgerald advances two propositions under this head:
i) Events had occurred between the dates of the alleged offences and the commencement of the prosecution which rendered a fair trial impossible. For this reason the prosecution should have been stayed.
ii) The delay in bringing the prosecution was attributable to fault on the part of the Crown. That delay had resulted in a real risk that the appellant might be prejudiced at his trial. For this reason the prosecution should have been stayed.
- Mr Fitzgerald has made no criticism of the manner in which the judge directed the jury. He has not suggested that there is any indication that, in reaching their verdicts, the jury were motivated by actual bias or prejudice. His attack is on the rejection by the judge of submissions made on three occasions that the trial should be stayed. Those submissions were advanced on two bases. The first was that the authorities had acted in ways which were inconsistent with prosecuting the appellant and that it was unjust that they should thereafter proceed with a prosecution. The second was that it was an abuse of process to proceed with the trial because it could not be fair or, alternatively, there was a real risk that it would not be fair. Inferentially these latter submissions amount to a contention that the trial was not, or may not have been, fair, for they cannot justify our allowing this appeal unless we conclude that the verdicts were unsafe.
- Mr Fitzgerald applied to the judge to stay proceedings on three separate occasions, leading to rulings on 13 July 2005, 9 January 2006 and 7 February 2006. He contends before us that each of these rulings was in error and relies cumulatively on events that occurred up to the time of the third ruling.
Abuse of process because of the conduct of the authorities
- We propose first to consider the submission that the manner in which the authorities behaved made it an abuse of process to proceed with the prosecution of the appellant, independently of the effect that they had on the fairness of his trial. We can do so fairly shortly, for Mr Fitzgerald realistically devotes most of his attack to the effect that these matters had on the fairness of the trial.
- The legal basis for these submissions is best identified by reference to the decision of the House of Lords in Bennett. In that case a defendant, charged with criminal offences in England, claimed that it was an abuse of process to proceed with these because he had been abducted in South Africa and brought to this jurisdiction by force in disregard of the proper extradition process and in violation of international law. The issue was whether the allegations that he made could properly be considered by the English court as a bar to his prosecution. The House held that they could. In the leading speech Lord Griffiths held at pp 62-3:-
"Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.
…
The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution."
Mr Fitzgerald accepts that the judge correctly summarised the relevant test as being whether there was 'an overriding affront to public justice in the trial being permitted to take place at all'.
- The first point made by Mr Fitzgerald is similar in nature and, indeed, overlaps with the submissions that we have already considered in relation to counts 14 and 15. Mr Fitzgerald submits that the authorities so acted as to indicate that the appellant would not be subject to prosecution for his speeches and that, in these circumstances, it was an abuse of process to prosecute him.
- In addition to the seizure and return of the cassettes and the Encyclopaedia by the police in 1999, Mr Fitzgerald submits that the Security Service so acted as to lead him to conclude that his speeches did not infringe the law or at least that he would not be prosecuted on account of them.
- The judge dealt with these submissions at the passage in his ruling of 13 July 2005 that begins at page 20. The relevant facts were that in 1997 and 1998 there were six meetings between the appellant and an officer in the Security Service and, separately, three meetings with officers of the Special Branch of the Metropolitan Police. There was in 2000 one further meeting with the former and one with the latter. Finally there was a short meeting with the police in 2003. Nothing significant was relied upon in respect of the meetings with the police other than the fact that they indicated that the police were taking an interest in the appellant's activities. Mr Fitzgerald relied, however, on recorded statements by the officer in the Security Service. The object of the meetings at which these statements were made was, at least in part, to discuss the appellant's personal security. The flavour of the statements is best represented by the following extract from the record of a meeting on 3 October 1997:-
"I reasserted the view that, over the past few months in particular, he had walked a dangerous tightrope and had come close to being culpable for incitement to violence. If he overstepped the mark he would undoubtedly come to the attention of British officialdom. The Security Service, in particular, took a dim view of those advocating violence, even if the violence was perpetrated overseas."
In a subsequent meeting on 9 October 1998 the appellant is recorded as stating that he would always speak openly and honestly and that he was prepared for the day when his openness might bring him into difficulties with the British authorities.
- The judge, at p. 28 of his ruling, asked himself the question, correctly, whether there had been given to the defendant such an assurance of non-prosecution, expressed or implied, that it would be an affront to the public conscience and to the integrity of the administration of justice to permit the case to come to trial. He stated that he had read and re-read the notes of the discussions and was quite clear that they did not amount to any such assurance. He then proceeded over the next five pages to analyse those notes in detail.
- Mr Fitzgerald submits that the judge's conclusion was wrong. He further submits that the representation that his conduct was not yet illegal was an indication that he was entitled to rely on that he was still acting within the law. We also have read the notes of the relevant meetings with care. We endorse the conclusions reached by the judge. We would add that we have seen no indication at all that the appellant was tailoring his utterances in reliance on assurances that they fell within the law.
- The next matter relied upon by Mr Fitzgerald under this heading is the decision, announced by the Home Secretary on 4 April 2003 to deprive the appellant of his British citizenship. The reasons given by the Home Secretary were as follows:-
"You have
• provided support and advice to terrorist groups and individuals;
• encouraged and supported the participation of individuals in physical aspects of the jihad, including fighting overseas and engaging in terrorist acts;
• provided, through Finsbury Park Mosque, a centre for extremism and a safe haven for Islamic extremists, enabling them to develop the contacts and support necessary to further their violent aims;
• promoted anti-Western sentiment and violence through your preaching.
I am satisfied that by promoting physical jihad and encouraging and supporting terrorist acts against western countries, thereby threatening the UK's national security, you have acted in a way seriously prejudicial to this country's vital interests.
I hereby certify, pursuant to section 40A(2) of the British Nationality Act 1981, that my decision has been taken in part in reliance on information which, in my opinion, should not be made public for reasons of national security."
Thereafter the Home Secretary set out to have the appellant deported, and detained indefinitely pending such deportation.
- Mr Fitzgerald submitted to the judge that this conduct by the Home Secretary constituted an election to punish the appellant for his past conduct, and in particular the making of the speeches for which he was subsequently prosecuted, by deprivation of citizenship and deportation. In these circumstances it was an affront to public justice to proceed with the prosecution.
- The judge rejected this submission. He held that there was nothing incompatible between depriving the appellant of his British nationality and prosecuting him for the offences with which he was charged. As Mr Fitzgerald had accepted, there could have been no complaint if the two decisions had been taken at the same time. The evidence upon which the Secretary of State acted was not the same as that upon which the indictment was based, although the background allegation of violent terrorism was common to both proceedings. Constitutionally, however, the two decisions were committed to different Officers of State and fell to be made on different principles.
- Mr Fitzgerald challenges the judge's reasoning. He submits that the Home Secretary could only have decided on the action that he took after taking a policy decision that the appellant should not be prosecuted. He must have consulted the police before taking his decision. If he did not, he should have done.
- We consider that the judge's analysis was correct. Precisely what information the Home Secretary had about the likelihood of the appellant being prosecuted is a matter of speculation, but is not material. What we cannot accept, even as a matter of speculation, is that there is any basis for inferring that the Home Secretary must have taken a personal policy decision that the appellant should not be prosecuted and that removal of his citizenship was chosen as an alternative punishment. The Home Secretary's action could not be taken as an implicit assurance that the appellant would not be prosecuted nor did it render the subsequent decision to prosecute him offensive to public justice.
- Allied to the argument that we have just considered is a contention that Mr Fitzgerald advances in relation to the fact that, with the assistance of the Crown Prosecution Service extradition proceedings were commenced and the appellant arrested pursuant to these at the request of the United States of America in relation to alleged involvement in terrorist activities between 1999 and 2001. It is true that if criminal charges are brought against a person who is subject to extradition proceedings, the latter have to be stayed pending the criminal trial. It does not follow from this, however, that it was an abuse of process to bring a criminal prosecution after the start of extradition proceedings. Indeed Mr Fitzgerald's argument is not so much that this sequence of events was itself an abuse of process but that it was the unbridled publicity that attended the extradition proceedings that made the commencement of those proceedings oppressive. This contention falls to be considered in the context of the contention that publicity rendered impossible, or at least put at risk, a fair trial.
- Finally under this heading Mr Fitzgerald complains about the delay that occurred between the activities that formed the basis of the appellant's prosecution and the date of commencing that prosecution. He does not complain, however, that the mere passage of time prejudiced the holding of a fair trial. His complaint is that, because of the delay, events occurred before the trial that prejudiced the holding of a fair trial. This complaint is best considered in the context of the next part of our judgment.
- For the reasons that we have given we reject the submission that the various events that we have considered, of themselves, whether considered singly or cumulatively, rendered it an affront to justice and an abuse of process to proceed with the trial of the appellant.
The effects of delay
- We can summarise Mr Fitzgerald's submission in relation to the relevant facts very briefly. In the period that elapsed between 2000 and the commencement of the appellant's trial, events occurred which were bound, or at least likely, to prejudice the jury unfairly against the appellant. These facts lead Mr Fitzgerald to advance a novel proposition of law. He accepts that the normal test on whether a trial should be stayed because of the prejudicial effects of media publicity is to ask whether, on balance of probability a fair trial will be impossible. He submits, however, that where the authorities have failed to bring a timely prosecution and the delay has led to a risk of prejudice to the defendant by reason of subsequent events and publicity, it is unfair and oppressive for the trial to go ahead.
- We have not found it easy to analyse what this submission amounts to in practice. It is customary where there has been publicity prejudicial to a defendant that may have been seen by members of the jury for the court to proceed on the presumption that a jury, if properly directed, will disregard such publicity. Only where the effect of the publicity has been so extreme that it is not possible to expect the jury to disregard it will it be appropriate to stay a trial on the ground of abuse of process. Mr Fitzgerald's submission amounts, we believe, to the contention that where the publicity has resulted from unjustified delay in bringing the prosecution the court should not start from a presumption that the jury, if properly directed, will be able to disregard it. The court should stay the process if it considers that there is a real risk that the jury may be prejudiced by it.
- Mr Fitzgerald relies, by analogy, on two specific situations which have received consideration by the House of Lords. The first is the test to be applied by the court when considering the effect of delay on an application for extradition. The Fugitive Offenders Act 1967 provided that the High Court could order the release of a person detained pending extradition if 'by reason of the passage of time since he is alleged to have committed' the offence 'it would, having regard to all the circumstances, be unjust or oppressive to return him'. A similar bar to extradition exists under the current legislation. Mr Fitzgerald relied on the approach to the 1967 Act of Lord Diplock, when giving the leading speech in Kakis v Republic of Cyprus [1978] 1 WLR 779 at p. 782. This was to consider all the events that would not have happened had the trial of the accused taken place with ordinary promptitude and consider the extent to which they would result in prejudice to the accused in the conduct of the trial.
- We do not consider that this statutory bar on extradition provides a close or helpful analogy with the test to be applied to staying a trial on the ground of abuse of process. We note, however, that, while Lord Diplock considered it highly relevant to consider whether the delay was attributable to fault on the part of the accused, he considered that "otherwise the question of where responsibility lies for the delay is not generally relevant" (p. 783). It does not seem to us that the approach in Kakis advances the appellant's case.
- In urging that, where the possibility of prejudice has arisen as a consequence of unjustified delay, the court should not presume that the risk will be cured by an appropriate direction to the jury, Mr Fitzgerald also relies on the recent decision of the House of Lords in R v Coutts [2006] UKHL 39. In that case it was the prosecution case that the defendant had deliberately killed a woman by strangulation whereas it was the defence case that her death was an accident as a result of consensual conduct aimed at enhancing sexual satisfaction. The judge had, with the consent of both prosecuting and defence counsel, deliberately not left to the jury the possibility of an alternative verdict of manslaughter. The House held that this rendered that verdict of guilty of murder unsafe.
- No criticism was levelled at the direction given by the judge to the jury as to the elements that had to be proved if they were to convict of the crime of murder. Counsel for the Crown argued that the integrity of jury trial depended upon acceptance that a properly instructed jury would heed and follow the instructions of the judge. It had therefore to be accepted that the jury, having deliberated, had found the full elements of murder to be established. He relied upon the observation of the Court of Appeal in R v Maxwell [1988] 1 WLR 1265 at p. 1270 another case where the judge had failed
to leave an alternative verdict to the jury:-
"To interfere with the verdict would require us to identify solid grounds for suspecting that members of the jury had foresworn their oaths by deliberately returning a verdict of guilty when they were not sure of it, simply to avoid an unwanted outcome."
He also relied on the following statement of Lord Ackner, when the case reached the House of Lords:-
"What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, is disgraceful conduct."
- The House did not approve the application of this test. Lord Rodger of Earlsferry observed (paragraph 87) that the test was so uncertain that it was likely to produce inconsistent results, however conscientiously applied,
- and Lord Mance (paragraph 99) that the test was unworkable. In its place the House of Lords held that where there was a viable alternative verdict open to the jury the judge must leave that verdict to them, or a conviction will be unsafe.
- This decision of the House of Lords recognises that there is danger in presenting to the jury an inadequate direction as to the relevant law which, if followed, may drive them to returning a verdict that, with good reason, they consider to be at odds with the requirements of justice. In such circumstances, far from starting with the assumption that the jury will faithfully follow the direction of the judge "it must be assumed that giving or omitting the direction affects the way the jury consider the verdict in the case", per Lord Roger at paragraph 88. The decision also recognises, so it seems to us, that "it need not be assumed that juries were unaffected by possible prejudice when making their decisions" and that a jury room might not be "a place of undeviating intellectual and logical rigour" (see paragraphs 20 and 25).
- Mr Fitzgerald invited us to adopt a similar approach to the risk that a jury may be affected by prejudice resulting from events that would not have occurred but for unjustified delay in bringing a prosecution. Two questions arise: (i) should the test for deciding whether a trial should be stayed because of prejudicial publicity depend upon whether or not that publicity is attributable to delay on the part of the prosecution in bringing the case to trial and (ii) what impact, if any, should the decision in Coutts have on the response of the court to an application for a stay on the grounds of prejudicial publicity?
- In A-G's Reference (No 2 of 2001) the House of Lords had to consider the effect of breach of the requirement of Article 6 of the European Convention on Human Rights that in the determination of a criminal charge against him everyone is entitled to a hearing "within a reasonable time." It was argued on behalf of the defendant that once a reasonable time had expired Article 6 required that a prosecution should not be pursued. The House, by a majority, rejected this submission. Lord Bingham of Cornhill held at paragraph 24:-
"It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant's Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) if was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant's Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time."
- The relevant provision of Article 6 does not apply in the present case, for that Article, as the House of Lords held, only bears on delay between charge, or notification of the likelihood of charge, and conclusion of the proceedings. We consider, however, that Lords Bingham's conclusions apply with even greater force to the consequences of delay that occurs in initiating criminal proceedings. If a fair trial cannot be held, then the proceedings must be stayed. There is, however, no justification for applying a different test to the effect of prejudicial publicity depending on whether or not this publicity would not have occurred but for the delay. We turn to consider that test.
- Applications for a stay of proceedings on the ground of abuse of process, founded on prejudicial media publicity, are a growth area in our criminal process. In R v McCann (1991) 92 Cr App R 239 the Court of Appeal held that such an application should have succeeded in quite extraordinary circumstances. During closing speeches in a terrorist trial where the defendants had exercised their right to silence the Secretary for Northern Ireland and Lord Denning took part in radio or television broadcasts, which might have been heard by the jury, in which they equated the exercise of the right of silence with guilt. Equally, in R v Michelle and Lisa Taylor (1994) 98 Cr App R page 361 this court held that "unremitting, extensive, sensational, inaccurate and misleading" press coverage of the trial was one reason why the guilty verdict was unsafe.
- In general, however, the courts have not been prepared to accede to submissions that publicity before a trial has made a fair trial impossible. Rather they have held that directions from the judge coupled with the effect of the trial process itself will result in the jury disregarding such publicity. The position was summarised by Lord Taylor CJ in R v West [1996] 2 Cr App R 374 at pp 385-6 as follows:-
"But, however lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts. The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view, it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise. In Kray (1969) 53 Cr App R 412 at pp. 414, 415, Lawton J said:
"The drama … of a trial almost always has the effect of excluding from recollection that which went before."
That was reiterated in Young and Coughlan (1976) 63 Cr App R 33 at p. 37. In ex p. The Telegraph Plc (1994) 98 Cr App R 91, 98 [1993 1 WLR 980, 987, I said:
"a court should credit the jury with the will and ability to abide by a judge's direction to decide the case only on the evidence before them. The court should also bear in mind that the staying power and detail of publicity, even in cases of notoriety, are limited and the nature of a trial is to focus the jury's minds on the evidence put before them rather than on matters outside the courtroom."
- Very recently in In the matter of B [2006] EWCA Crim 2692 the President of the Queen's Bench Division made the following statement, which we would endorse:-
"32. There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case Butterfield J will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair."
- The position is the same in Scotland. In Montgomery v HM Advocate [2003] 1 AC 641 the Privy Council had to consider a submission that pre-trial publicity had rendered impossible a fair trial that would satisfy Article 6 of the Human Rights Convention. Lord Hope of Craighead remarked at page 673 that Article 6 did not set out to make it impracticable to bring those accused of crime to judgment. The Strasbourg court did not require the issue of objective impartiality to be resolved with mathematical accuracy. Account was taken of the fact that certainty in these matters was not achievable. He went on to observe:-
"Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Young, Cameron & Tinsley, Juries in Criminal Trials: part Two, vol 1, ch 9, para 287 (New Zealand Law Commission preliminary paper no 37, November 1999). The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdicts.
The judges in the court below relied on their own experience, both as counsel and as judges, of the way in which juries behave and of the way in which criminal trials are conducted. Mr O'Grady submitted that there was no basis upon which one could assess the likely effect of any directions by the trial judge. He said that this was something that was incapable of being proved. But the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence."
- It seems to us that there is a degree of tension between the approach of the House of Lords in Coutts and Lord Hope's observations in respect of the trust that can properly be placed on the jury's ability to perform their duty to reach a decision in accordance with the evidence and the directions of the judge. We suggest that the answer to this tension is as follows. The risk that members of a jury may be affected by prejudice is one that cannot wholly be eliminated. Any member may bring personal prejudices to the jury room and equally there will be a risk that a jury may disregard the directions of the judge when they consider that they are contrary to what justice requires. Our legal principles are designed to reduce such risks to the minimum, but they cannot obviate them altogether if those reasonably suspected of criminal conduct are to be brought to trial. The requirement that a viable alternative verdict be left to the jury is beneficial in reducing the risk that the jury may not decide the case in accordance with the directions of the judge. Prejudicial publicity renders more difficult the task of the court, that is of the judge and jury together, in trying the case fairly. Our laws of contempt of court are designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial. The fact, however, that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that, with his assistance, it will be possible to have a fair trial. In considering this question it is right for the judge to have regard to his own experience and that of his fellow judges as to the manner in which juries normally perform their duties.
- In the present case, the judge rejected on three occasions an application for a stay on the ground of abuse of process. The first application was in the process of being heard when the London bombings took place on 7 July 2005. It had been intended that the trial should proceed at once if the application failed. The judge held that a fair trial would be possible but that, because of the prejudice that might be caused by the bombings and attendant publicity, the trial should be adjourned until January. On 9 January, on the eve of the trial the judge again rejected a stay application, holding that a fair trial was possible. The final application was made on 7 February, because of further adverse publicity after the jury had retired. Once again the judge rejected the application. It remains to consider whether he was correct to conclude, on each occasion, that a fair trial was possible.
- Mr Fitzgerald does not rely simply on adverse media publicity when arguing that a fair trial was impossible. He relies upon changes in attitude and public perception in relation to terrorism that followed first the destruction of the World Trade Centre on 11 September 2001 and subsequently the London bombings on 7 July 2005. The critical issues before the jury were whether the appellant's speeches constituted incitements to kill and whether he intended to incite to kill and to stir up racial hatred. Mr Fitzgerald argues that after 11 September and 7 July it was impossible for the jury fairly to judge the appellant's utterances in the context in which they were made. The adverse publicity compounded the jury's difficulties, quite apart from the fact that it itself made a fair trial impossible.
- Mr Fitzgerald further argues that the period of delay in prosecuting the appellant was marked with a number of events which stimulated a reaction against the appellant on the part of the media which was untrammelled by the law of contempt of court. These included:
i) An order on 16 January 2002 by the United Nations Security Council freezing the appellant's funds on the ground of alleged contact with Al Qaeda;
ii) A raid on Finsbury Park mosque in January 2003 followed by the appellant being banned form preaching there;
iii) The announcement by the Home Secretary of the removal of the appellant's British citizenship on 4 April 2003;
iv) The reference by counsel for the Home Secretary in SIAC proceedings in May 2003 to the appellant creating a fertile recruiting ground for would-be terrorists;
v) The arrest of the appellant for extradition on 27 May 2004; in the subsequent proceedings the Assistant Attorney-General for the United States referred to the appellant as 'a terrorist facilitator with global reach' and made allegations of participation in particular acts of terror.
- The judge referred to these matters and to the 600 pages of newspaper reports, articles and comments spanning the period from the beginning of 2003 to March 2005, which have also been placed before us, and treated them merely as samples of a sustained campaign against the defendant, almost entirely hostile to him and some of it couched in particularly crude terms. There was indeed a prolonged barrage of adverse publicity, some of which treated the appellant as an ogre. The judge remarked at page 46 of his first ruling that he had no doubt that the publicity would have created a risk that the fairness of the defendant's trial might be adversely affected. The judge went on to consider whether this was a risk that he would be able to avoid.
- After considering at length the relevant authorities, to most of which we have already referred, the judge commented on his own considerable experience of jury trial:-
"For what it is worth, this judge's experience leads him to endorse the conclusion that lawyers are occasionally unwisely dismissive of juries. Almost universally, they approach their task and their oath with conspicuous conscientiousness. They are often unavoidably faced with inadmissible evidence which they must discount, especially in the case of several defendants, and experience strongly suggests that, whilst desirable, it is not necessary for them to be kept wholly ignorant of such evidence in order to be able to reach a careful decision which takes no account of it.
Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks.
They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof. "
- The judge stated that he had already decided that it would not be fair to hold the trial in the immediate aftermath of the London bombings and was adjourning it until the end of the year 2005, which would be more than a year since the most intense publicity. He then went on to describe the steps that he anticipated that he, as trial judge, would need to take in order to counter the effects of adverse publicity:-
"It will remain likely, as it seems to me, that any trial will have to be approached on the basis that the jurors will, or certainly may, remain generally aware that this is a defendant who was the object of intense publicity and of a campaign against him, although I doubt that they will recall, as a lawyer interested in the case might recall, the detail of specific allegations such, for example, as those made at the time of the extradition request in mid summer of 2004.
That will mean that the jury must be warned carefully about how they are to approach the case. What exactly needs to be said to them will fall to be considered after submissions by the parties and at the time and, particularly, in the light of any submissions made on behalf of the defendant, but I record now that I would expect it to go significantly beyond a formulaic injunction to put out of their minds anything they have read in the papers. It seems to me likely that it will need to involve a careful explanation of the difference between their task in the sifting and evaluation of the evidence, on the one hand, and indiscriminate hostile labelling of a suspect by the public commentators, on the other hand.
It may, if the defendant so wishes it, be possible to refer to an example or two of public comment which is known to have been entirely baseless. I have considered but do not take the view that the defendant is put in an impossible position in deciding how far to refer to and to seek to confront the publicity that there has been, although of course I accept that he may, as many defendants do, have decisions of some delicacy to make in the course of the trial."
- The judge concluded that he was satisfied that with proper direction a jury would be able to bring impartial judgment to the case and to decide whether, despite being labelled by some as a public enemy, the defendant really did commit the offences with which he was charged.
- On 9 January 2006 the judge rejected a renewed application for a stay. This was based on media coverage of the London bombings that had included some references to the appellant as someone who was likely to have contributed to the willingness of some to make such attacks. The judge held that this publicity would not prevent the jury from objectively considering the allegations made against the defendant, adopting the reasoning of his earlier ruling.
- Finally, on 7 February 2006, several days after the jury had retired to consider their verdict, Mr Fitzgerald attempted once again to persuade the judge to stay the proceedings on the grounds of some recent media publications and broadcasts, including comment on the reactions of some Muslims to the publication, outside this jurisdiction, of cartoons representing the prophet Mohammed. The judge held that there was no appreciable risk that these matters would deflect the jury from their task.
Conclusions
- We have no need to deal separately with the rulings given by the judge on the second and third occasion that he dealt with stay applications, for Mr Fitzgerald has not contended that this appeal should succeed in respect of either of these rulings if it fails in respect of the first, and most substantial, ruling. The question remaining for this court is whether the judge was correct to conclude that, with his assistance, the jury would be able to try the issues fairly without being prejudiced or distracted by the events that had occurred since 2000 and by the media coverage of those events.
- The judge was correct to conclude that the adverse media publicity attendant upon the events that had occurred between 2000 and the bringing of charges against the appellant in October 2004 had put at risk the fairness of his trial. The challenge posed to the judge of taking appropriate steps to neutralise the effect of these matters by appropriate directions and guidance in the course of his summing up was considerable. The task was an exacting one. The judge was confident that he would be able to discharge it. We have concluded that his assessment of the position was correct. The circumstances did not require the judge to stay the prosecution on the ground that there could not be a fair trial.
- We have read the judge's summing up to the jury with admiration. As we have observed, Mr Fitzgerald has made no criticism of it. The defence had been permitted to call an expert witness to provide the context in which the various speeches had been made. The judge reminded the jury of this evidence. He set the various speeches in their context and drew attention to the issues that the jury had to resolve with pellucid clarity. He gave a careful and skilful direction in relation to media coverage.
- There is no reason to believe that the jury were not able to consider and resolve the relevant issues objectively and impartially. It is not without significance that they recorded verdicts of not guilty on counts 6, 9, 11, 12. Mr Fitzgerald submits that the conviction on some counts but not on others reflected a determination on the part of the jury that the appellant should not escape wholly unpunished. We can see no basis for this submission. The jury's verdicts appear to us to reflect a rational differentiation between the stronger and the weaker counts.
- For the reasons that we have given, this appeal is dismissed.
