Talal, R v [2005] EWCA Crim 2031

Case No 2003/00869/C5[2005] EWCA Crim 2031
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 19 July 2005
The Strand
London
WC2A 2LL
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)
MR JUSTICE GOLDRING
MR JUSTICE WALKER
Between
R E G I N ACrown- v -
Between
HASSAN TALAL YOUSEF ASSALI
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR E FITZGERALD QC and MR K GLEDHILL appeared for APPELLANTMR S HESLOP QC and MR M KHAMISA appeared for CROWN
J U D G M E N T

Tuesday, 19 July 2005

[1]On 24 May 1985, in the Crown Court at St Albans, before Blofeld J, the appellant was convicted of making explosives contrary to section 4 of the Explosive Substances Act 1883. He was sentenced to nine years' imprisonment. Four counts of possession of firearms and ammunition, which were contained in a separate indictment, were left on the file. There was no dispute about the possession of those items.[2]Having been convicted, the appellant made an application for leave to appeal. On 17 October 1986, that appeal came before Lord Lane CJ, who granted an application made by the appellant's counsel to abandon his application for leave to appeal against conviction and refused all other applications. Following correspondence between the appellant and the Criminal Appeal Office, in which the appellant alleged that counsel had acted without authority in withdrawing the application for leave to appeal, he applied for his abandonment to be treated as a nullity. On 8 May 1989, the full court, presided over by Croom Johnson LJ, refused that application.[3]The matter comes before this court today having been referred for consideration under section 9 of the Criminal Appeal Act 1995 by the Criminal Cases Review Commission.[4]The appellant is a Libyan born British citizen who was educated in this country. In 1978 he had opened his own company which was based in Borehamwood. It manufactured various electronic devices, including a burglar alarm system, safe equipment, sophisticated security devices, infra-red alarm detectors and tracker devices. It was the prosecution case that he had been using his company to produce timers which were explosive devices.[5]The appellant had taken on a Mr Bidwell as a technician. In April 1984 Mr Bidwell alleged that the explosive devices were being made at the appellant's business premises. In addition he referred to the firearms that were there. In May 1984 the police and Customs officers searched the appellant's home and factory. They found seventeen timers in an airing cupboard in his home and seven half-assembled timers at the factory. The appellant was interviewed on various occasions when he was asked about how and why he came into possession of the timers.[6]At the trial the appellant gave evidence. The effect of his evidence was that these were not timers designed to be used in conjunction with explosives. Clearly that evidence at that time was not accepted by the jury. There is no doubt that an important part of the Crown's case against the appellant depended on the evidence of Mr Fereday, who was a principal scientific officer at an organisation at RARDE and a specialist in improvised explosive devices. He examined all the devices that had been recovered. His evidence supported the Crown's case with regard to the nature of those devices.[7]However, the defence now have further evidence following R v Berry, which had similarities to this case. On the appeal in that case evidence was given by Major Lewis and Colonel Wyatt, together with Dr Bora, who were highly experienced and impressive experts who concluded that similar devices to those in this case were simply timers. Mr Fereday had also given evidence in the case of Berry. The evidence which was given by the three experts to whom we have just referred rebutted the evidence of Mr Fereday that the absence of safety devices in the timers prevented their use for legitimate purposes. Accordingly, the Court of Appeal concluded in Berry that Mr Fereday's opinions were central to the trial and were open doubt at the very least. They therefore quashed Mr Berry's conviction.[8]As the evidence of Mr Fereday was equally crucial to the prosecution in this case, the implications for this case were obvious. At the time of his trial the appellant had had difficulty in obtaining expert evidence. The only person he found to give evidence in his defence deferred to the expertise of Mr Fereday. In view of the fact that there is now available expert evidence which this court gives to adduce under section 23 of the Criminal Appeal Act 1968, the position is now very different from that which existed at the time of the previous trial.[9]Having had an opportunity to consider the case referred to this court by the Criminal Cases Review Commission, and following an earlier directions hearing, Mr Heslop QC has put before this court a document which refers to an ELOKA report which is the report of the additional experts to whom we have referred. The document says this:
"3. The question of admissibility of new/fresh evidence under section 23(1) of the Criminal Appeal Act 1968 is entirely a matter for the discretion of the court. However, bearing in mind the test of admissibility is whether it is 'necessary or expedient in the interest of justice', the Crown do not feel able to object to the admissibility of the evidence of Colonel Wyatt, Major Lewis and squadron leader Hoyes, as set out in their joint report, dated 9th May 1997 and will not do so."
Under the heading "Safety of Conviction" the statement goes on:
"4. In deciding whether it is in a position to resist the appeal, the Crown has reviewed all the material in its possession and, in particular, taken full account of the potential impact of the aforesaid ELOKA experts' report upon the trial jury, and its likely effect upon the verdict. Critical to the case against the appellant was Allen Fereday's evidence. The Crown is of the view that there is a reasonable argument to suggest that the ELOKA material might well have left his evidence open to reasonable doubt. 5. In the circumstances, the Crown does not feel it is in a position to advance argument to support the safety of the conviction on this basis and will not seek to resist the argument of the appellant that this material renders his conviction unsafe. 6. This decision relates to the particular facts of this case alone and should not be taken to have any wider significance beyond this appeal. Nor are any concessions made as to the correctness, or otherwise, of the ELOKA experts' report. 7. The Crown's decision is based upon the perceived impact that this material would be likely to have had upon the jury and the inability now to call evidence to contradict it in rebuttal. 8. In relation to the remaining matters raised in the appellant's grounds of appeal, the Crown's response remains as set out in their response dated 22 May 2005."
As is indicated in that response of the Crown, wider and other allegations were made on behalf of the appellant by his counsel in the documents which they prepared for the appeal.[10]This court has considered all the material put forward on the appellant's behalf in his amended grounds of appeal. For the purposes of disposing of the appeal it is not necessary for this court to make any findings over and above those conceded by the Crown, and we do not do so. It is sufficient that on the basis of the expert evidence that is now available to the appellant, this appeal must be allowed and the appellant's conviction set aside. Accordingly, we make the appropriate orders to achieve that purpose.[11]We are very grateful to the legal advisers on both sides for preparing the matter in the way that they have which enabled us to deal with this case in a relatively summary manner. It is right also to point out that it was as long ago as 24 May 1985 that Mr Assali was convicted. It is unfortunate that, through no one's fault, it has taken all the time that has elapsed since then for the result which has occurred today to be brought about.[12]MR FITZGERALD: My Lord, there is one other matter, which is the issue of costs. I understand that there have been some incidental costs incurred. It may be that they are not very substantial, but would your Lordships make an order for costs out of central funds for such costs as have been incurred by the defendant in bringing this matter back? He is legally aided for the purpose of his legal proceedings, but along the way I understand there have been some costs.

THE LORD CHIEF JUSTICE: Mr Heslop, there can be no objection to that, can there?

[14]MR HESLOP: No, my Lord.

THE LORD CHIEF JUSTICE: So be it. Mr Fitzgerald, you have your order.

[16]MR FITZGERALD: Thank you very much, my Lord.

THE LORD CHIEF JUSTICE: Thank you for your assistance.