Appeal From R. Prosecution Service Under Section 58 of the Criminal Justice Act 2003 Sub Nom R v I.K.,a.B., and K.A. [2007] EWCA Crim 971

[2007] EWCA Crim 971Case No 2007/00985
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
MR JUSTICE MACKAY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 April 2007
Before
THE PRESIDENT OF THE QUEEN'S BENCH DIVISIONLADY JUSTICE HALLETTMR JUSTICE HEDLEY
Between
Appeal from the Crown Prosecution ServiceCrownUnder Section 58 of the Criminal Justice Act 2003CrownSub nomCrownRCrownI.K.,A.B., and K.A.Crown(Transcript of the Handed Down Judgment ofCrownWordWave International LtdCrownA Merrill Communications CompanyCrown190 Fleet Street, London EC4A 2AGCrownTel No: 020 7421 4040 Fax No: 020 7831 8838CrownOfficial Shorthand Writers to the Court)CrownMr Ian Burnett QC, Mr Nicholas Hilliard and Mr S. Larkin for theCrownI.K.,a.B., and K.ADefendantAppeal from the Crown Prosecution ServiceUnder Section 58 of the Criminal Justice Act 2003Sub nomR- -I.K.,A.B., and K.A.
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Ian Burnett QC, Mr Nicholas Hilliard and Mr S. Larkin for CrownMr Edward Fitzgerald QC and Mr D. Friedman(instructed by Birnberg Peirce) for I.K.Mr H. Blaxland QC and Mr E. Grieves (instructed by Birnberg Peirce) for A.B.Mr T. Munyard and Miss R. Refahi (instructed by Birnberg Peirce) for K.A.Hearing Hearing dates : 14, 15 and 20 March 2007
Judgment
[1]These are prosecution appeals against orders made by Mackay J at Woolwich Crown Court on 21st February 2007, staying proceedings against IK, AB and KA. For convenience, we shall refer to them as the defendants. On 31st March the appeals were allowed. These are our reasons.[2]The indictment, as summarised by the judge, contained three counts. Count one charged the defendants with conspiring together and with persons unknown to provide property for the purposes of terrorism, knowing or intending that it would be used for the purposes of terrorism, before 3rd October 2005: the property in question was money and false identification and travel documents. Count two charged them with entering into or being concerned in arrangements by which property was made available to others, on the same dates and with the same knowledge or belief, contrary to section 17 of the Terrorism Act 2000 (the 2000 Act). Count three charged IK alone with providing money for the purposes of terrorism on the same dates and with the same knowledge or belief, contrary to section 15(3) of the same Act.[3]Mackay J upheld an application by IK to stay the proceedings against him as an abuse of process, and applications by AB and KA, on substantially the same grounds as each other, but different grounds from IK. Following his ruling he gave the Crown leave to appeal on the following grounds: a) whether it was appropriate to extend principles of “double jeopardy” to proceedings in SIAC and subsequent criminal proceedings. This issue concerned the proceedings against IK. b) What material is to be considered in deciding whether criminal charges are founded on the same or substantially the same facts? This ground related to AB and KA. On analysis this question, too, required us to address further aspects of the principles relating to double jeopardy. The allegation[4]The defendants are alleged to be members of an organisation known as the Libyan Islamic Fighting Group (“LIFG”). The primary aim of LIFG is the overthrow of the Gadaffi regime in Libya, but it is said to support a much wider notion of Islamist terrorism aimed at targets beyond the current regime in Libya, and to be actively linked with a wide range of terrorist groups. Operating from the United Kingdom, between 2001 and 2003, the defendants conspired to send significant sums of money to others who were engaged in terrorism within the meaning of section 1 of the 2000Act, and have directly or indirectly provided support for the families and other dependants of those who were so engaged. They also provided important false identification documents for the purposes of terrorism.[5]For the purposes of the applications before him Mackay J assumed that the prosecution was in a position to produce evidence which would entitle the jury to conclude that all three defendants: a) “were complicit in or party to the making of some or all of certain transfers of money between May 1999 and September 2003 to the thirty three recipients set out in a schedule of money transfers dated 31st January 2007”; b) “were likewise engaged in the manufacture and distribution of false documents of identification and/or travel documents supplied or intended to be supplied to persons who shared their aims, or who were the dependents of such persons”; c) “were at the relevant time members of LIFG and supported its aims which were primarily regime change in Libya, but which also included support for the activities of a wider trans-national Jihad, in the sense of an armed struggle with governments of other countries perceived as enemies of true Islamic beliefs”; He added: d) “These activities, engaged in by the defendants, fall within the meaning of terrorism as defined by section 1 of the 2000 Act.” In his judgment Mackay J recounted the relevant history and made a number of findings of fact. We gratefully adopt, and where appropriate effectively repeat his meticulous analysis, supplemented in a limited way by further information provided during the hearing. The defendants deny all the allegations against them. We must, therefore, emphasise that we are here considering unproved allegations and assumptions. The Statutory Regime[6]The Anti-Terrorism, Crime and Security Act 2001 (ATCSA) was enacted following the notorious events of 11th September 2001. Section 21(1) of the Act provides:
“The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably (a) believes that person’s presence in the United Kingdom is a risk to national security; and (b) suspects that the person is a terrorist.” (a) believes that person’s presence in the United Kingdom is a risk to national security; and (b) suspects that the person is a terrorist.”
[7]These provisions are amplified, and defined. Power is given to deport a person in respect of whom a certificate has been granted, with further power to detain him pending deportation or, if he cannot be deported, indefinitely. Section 25 provides a right of appeal against certification to and vests exclusive jurisdiction to cancel certification in the Special Immigration Appeals Commission (SIAC). This is a superior court of record, with an appeal to the Court of Appeal on questions of law.[8]When these powers were created, they were said to be subject to the important limitation that they would be exercised only in relation to individuals who could not otherwise be prosecuted in the criminal courts. Further, the certification decision required that a link should be established between the individuals in question and the terrorist organisation, Al Qaeda and its associates. This arrangement is clearly explained in the SIAC judgment in A and Others v SSHD (SC 1-7/2002 30th July 2002), at paragraph 48:
“…there are two reasons for supposing that the provisions of sections 21 and 23 of the 2001 Act are to be applied only to those said to be linked to Al Qaeda and its associates. First, the 2001 Act falls to be interpreted in the light of section 3 of the Human Rights Act, which would tend to prevent the powers of detention being exercised in the absence of a connection with the state of emergency. Secondly, the Attorney General indicated to us on behalf of the government that if the powers under sections 21 and 23 of the 2001 Act were exercised against a person not said to be linked with Al Qaeda or its associates, that would be a proper basis for this Commission to set aside the certificate under section 25(2)(b) of the Act. ”
Part 4 of the 2001 Act, which provided the relevant legislation, was repealed after the decision of the House of Lords in A and Others v SSHD [2005] 2 AC 68. However, it was in force at all times material to the history of this case. History, as it relates to IK[9]K is Libyan by birth and nationality. In 1994 he arrived in the United Kingdom from Saudi Arabia. His claim for asylum was refused. He made further claims for asylum in 1997, and in 1999 he was granted indefinite leave to remain in the United Kingdom. On 21st November 2002, he was arrested and his premises were searched. Two days later the Secretary of State for the Home Department (SSHD) issued a certificate under section 21 of ATCSA, and he was detained. The certificate stated: “You are a member of a group of Mujahideen engaged in active support for various international terrorist groups, including networks associated with Osama Bin Laden. Your activities on behalf of these networks include the provision of material support”.[10]IK appealed to SIAC. SIAC’s proceedings were regulated by statute. They included some unique features. There were concurrent “open” and “closed” proceedings. In the “open” proceedings the appellant could participate, receive disclosure and be represented in the familiar way. In “closed” proceedings he could do none of these things. His interests were safeguarded by a special advocate. Paragraph 7 of the SSHD’s “open” statement asserted that “he cannot be prosecuted because the nature of the case against him is based on intelligence, disclosure of which in open court would cause damage to national security”. Deportation was not an option because IK’s rights under article 3 of the European Convention of Human Rights (ECHR) could not be guaranteed if he were returned to Libya.[11]IK indicated that he would not participate personally in the appeal process. However he lodged his own “open statement” in response. He accepted that he had been a member of LIFG until his arrest, asserting as was then the case, that LIFG was not a proscribed organisation, and claiming that its sole interest was opposition to the regime in Libya. He said that the group was totally opposed to the views of Al Qaeda. Those who became refugees from the Libyan regime required false documentation to enable them to travel and he acquired photographs “to try to get travel documentation for people for whom I was asked to acquire it who were trapped in very difficult situations where they were at risk in particular of being sent to Libya”. In short, there were no terrorist aspects to his activities, and the material relied on against him did not sustain any such contention.[12]The SSHD submitted a second “open” statement. He accepted that IK had been engaged in legitimate fund-raising as well as fund-raising for extremist Islamists. He also accepted that there were factions within LIFG which did not support Al Qaeda, and that as an organisation LIFG continued to focus on affairs in Libya. However he suggested that at least one of the recipients of money sent by IK had links with Al Qaeda, and the position was maintained that IK was extensively involved in support of associates “assessed to be Islamic extremists”.[13]On 8th March 2004 IK’s appeal was allowed by SIAC. Consequently the certificate issued by the SSHD was cancelled. For present purposes the most important aspect of the judgment was SIAC’s focus on the question whether the SSHD had established to the standard of reasonable suspicion “that the appellant has links to Al Qaeda or has knowingly provided support to extremists who belonged to loosely affiliated Al Qaeda networks”. Although SIAC concluded that it would be “enough that he has supported one who in fact belonged to such a network if he has turned a blind eye”, it was not so satisfied. In effect, although SIAC did not “doubt that the respondent was entitled to suspect that the appellant is a terrorist within the meaning of the 2001 Act,” it rejected the argument that there was sufficient material which made it reasonable to suspect that IK was engaged in any kind of active support either for Al Qaeda, or groups loosely affiliated to it.[14]The SSHD sought leave from the Court of Appeal to appeal against SIAC’s decision. On 18th March 2004 the application was refused. After a period of sixteen months in detention K was released in April. On 3rd October 2005 he was detained in connection with a notice of intention to deport, and on 11th December 2005 charged with the offences for which he now stands trial. He has been in custody since October 2005. His appeal in respect of the deportation proceedings is outstanding.[15]The striking feature of this narrative is that notwithstanding that IK was deprived of his liberty for sixteen months, he was not charged with or prosecuted for criminal offences until the start of the present proceedings. The position of AB and KA is markedly different. History, as it relates to AB and KA[16]AB and KA are Libyan by birth and nationality. AB entered the United Kingdom in July 2002. He was followed in October by KA. On 27th November 2003, in the course of a routine investigation, packages addressed to their homes were intercepted, and on examination were found to contain false passports. On 8 January 2004 their addresses were searched. Both were arrested. They were interviewed and charged with two offences under section 5 of the Forgery and Counterfeit Act 1981. KA was also charged with possessing a prohibited weapon.[17]Sixty four exhibits were recovered from KA’s home. Describing them broadly, they included the equipment and stock in trade of a passport forger, as well as a computer, discs, cassettes and similar equipment. A significant document, exhibited in the current proceedings as PEB/48, was identified at the time for what it was, a form of accounting document, which was translated by 5th February. At AB’s premises, thirty five exhibits were seized. Again these included a personal computer, cassettes as well as books and other documentary material, and a ledger, PJQ/13 in the present proceedings. Both men were interviewed. There were ample admissions to forgery offences, but their motives were said to be humanitarian.[18]Criminal proceedings went ahead at speed. After transfer to the Crown Court, on 5th March 2004 the case was listed before the Recorder of Birmingham for a preliminary hearing. By then the process of translating the material seized at both premises was well under way, and the list of exhibits included all the material relating to the production of false passports, together with translations of some of the Jihadist material, and the two important accounting documents, PEB/48 and PJQ/13.[19]The indictment was ready to be preferred and counsel asked that it be put. The Recorder’s initial reaction was hesitant, and he was concerned at the proposal. Count one charged them with having false instruments under their custody and control. These were passports, passport stamps, blank birth certificates, identity cards and other documents which could be used instead of passports. Count two charged them with custody or control of equipment and materials with which such false instruments could be made. After counsel on both sides indicated that it was appropriate for the defendants to be arraigned, they pleaded guilty to both counts.[20]The case was re-listed before the Recorder on 12th May 2004. He ordered re-arraignment. The defendants confirmed their pleas. The prosecution described both defendants as “part of what has to be a highly …organised group”. A written basis of plea was provided. This had three features. First, the defendants did not make financial gain from the provision of false travel documents; second, the images of people recovered during the police search were not used in order to create false travel documents, but merely showed some of the people who had suffered under the regime in Libya; and third, KA did not know the nature of the CS gas canister which was the prohibited weapon found in his possession. The prosecution said that they “could not gainsay” these assertions. The mitigation suggested that both men were acting out of political conviction, and on a charitable basis to help those who had undergone persecution.[21]Having considered the basis of the plea, as well as the mitigation, the Recorder plainly felt a degree of sympathy for the defendants. In his sentencing remarks he described AB and KA as “perfectly decent men” who had suffered in a way “which could only be imagined.” He accepted the mitigation that their motivation was not financial profit, but the provision of assistance to others who held views similar to their own. Accordingly he imposed sentences of three and a half years imprisonment which, without the basis of plea in mitigation, might well have been considered lenient. They were released from their sentences in July 2005. They were re-arrested, with IK, on 3rd October in connection with proposed deportation, and on 11th December, again with IK, they were charged with the current offences. They too have remained in custody since their arrest in October 2005.[22]Self evidently the proceedings involving AB and KA, unlike those involving IK, were criminal proceedings, conducted in open court. They were convicted on their own guilty pleas, and duly sentenced. The relationship between IK, AB and KA[23]The case against IK before SIAC was largely based on material found by the police when they searched two addresses which were associated with him. The police found financial and travel documents, and importantly, an accounting log which showed the collection and distribution of significant quantities of money. No new documents of any major significance were seized from IK after his arrest in 2002. However the material seized from AB and KA following their arrests in January 2004, and the developing analysis of them, and the further evidence which became available to the prosecution, now form a central part of the present criminal prosecutions against IK.[24]Investigations into the activities of LIFG had been continuing for some time, but at the time of the SIAC proceedings involving IK, the Court was told that LIFG was not then regarded as a threat to national security. However it was proscribed on 18th October 2005. All three defendants now accept that they were members of LIFG. In the case of IK, that has always been so. So far as AB and KA are concerned, they have always admitted an association with LIFG, but claimed to belong to a group which was not a “fighting” group. The essential foundation for the evidence to support the findings of fact which would be open to the jury to make (as summarised in paragraph 5 of this judgment) came from the searches of their respective homes. This included evidence of money sent abroad, and the means to create false passports and travel documents together with what was referred to as “Jihadist material”. The conspiracy allegation in count one is based on the links between the three defendants which were gradually built up in the course of and as a result of the analysis of the product of the searches.[25]IK has always admitted sending money to persons overseas, some of whom are alleged to be terrorists, and he has also admitted creating the ledger known as PEB/48, which it will be remembered was found in the possession of KA, or at his address when KA was arrested in January 2004. IK’s fingerprints have been identified on it. The last two entries on PEB/48 relate to a name which can be shown to be AB. As to AB, the ledger known as PJQ/13 was found in his possession. The facts are necessarily very complex. However, given the issues which arise in these appeals, it is sufficient to indicate that, quite apart from the evidence on which a jury could make the findings of fact summarised by Mackay J, there is also clear evidence linking these three defendants in the alleged conspiracy. Mackay J’s decision IK[26]Mackay J’s decision was reached on the grounds of double jeopardy arising from the SIAC proceedings. He acknowledged that they were not criminal proceedings, whereas the leading cases, with the possible exception of the most recent, arose from consecutive criminal proceedings. He found that the mere fact that different parties were involved did not preclude “double jeopardy”. He acknowledged that he was being asked to extend the principle of “double jeopardy”, and, as we shall see, he was prepared to do so.[27]At the same time Mackay J rejected the argument that the issue of the section 21 certificate should be taken as an implied promise that there would be no prosecution. He found in terms that no such assurance “can possibly be read into the Crown’s conduct in this matter”. The defendant and his advisors were “very far from believing he was immune from prosecution”.[28]The critical passages in Mackay J’s judgment read:
“My conclusions…are that the position he faces in this trial, unusual and unprecedented though it is, ought to be recognised as double jeopardy, and of a type which would make the current trial oppressive to a degree which requires the powerful remedy of a stay. The reality of his position is that on substantially the same or significantly overlapping facts the charges he now faces have been the subject of a decision by a superior court. As well as being unjust to him, relitigating these issues runs the risk of producing inconsistent decisions contrary to the broader interests of justice. Though SIAC is not a criminal court, I consider that its function, and the potential consequences of its exercise of them, was so close to that description as to indicate that the double jeopardy principle should be applied and my discretion should be exercised in favour of the application”
. AB and KA[29]The applications on behalf of AB and KA were also advanced on the basis of double jeopardy arising from the proceedings in Birmingham Crown Court during 2004. Mackay J began by rejecting arguments based on bad faith or malpractice by or on behalf of those responsible for the prosecution, saying at para 70: “I am quite satisfied that the police here acted in good faith throughout, and reject Mr Munyard’s suggestion that the lesser charges were used, after pleas of guilty were entered, as a type of holding exercise, to have the defendants imprisoned while the more serious charges were considered at leisure ”.[30]Mackay J was prepared “fully” to accept that the cases against all three defendants were “complex and require time and manpower to investigate”, but he felt that this would or must be a feature common to many such cases. DS Lloyd gave evidence that the material seized continued to be studied after they were sentenced “to support the original warrants” by which he meant “to see if (the exhibits) are providing any evidence of terrorism”. But Mackay J was “struck by the fact that no attempt was made at any stage to slow down or adjourn the first prosecution, which proceeded at a brisk pace throughout, to permit further investigation as to whether more serious charges were warranted”.[31]Basing himself on R v Beedie [1998] QB 356 Mackay J concluded:
“I am also satisfied that before these men’s cases were disposed of in the Birmingham Crown Court, while the Crown may not have had a complete case against them under the terrorism legislation there was ample material in their hands to alert them to the more serious implications of these men’s activities ”
[32]The precise significance of these observations was disputed. Mr Blaxland QC for AB and Mr Munyard for KA sought to argue that the absence of an express finding, meant that Mackay J had come to no concluded view whether there was sufficient evidence with which to charge AB and KA with the instant offences. Certainly, he did not expressly reject their submissions that there was sufficient such evidence. However, we have examined his language in the context of his analysis of the submission that these defendants had been deliberately “undercharged” and the process abused by the police, as well as the later observations in his judgment. It is clear that the judge concluded that as at May 2004 the material available to the Crown was insufficient to justify terrorism charges. If he had concluded otherwise, he would have said so expressly, first, because such a finding would have been highly relevant to the way in which he addressed the submission that the defendants had been deliberately undercharged, and second, because it would have provided significant additional support for his eventual ruling that the prosecution should be stayed.[33]Mackay J finally considered whether this should be treated as a double jeopardy case in which any “special circumstances” might arise. However, notwithstanding the “new facts” which post-dated the convictions at Birmingham Crown Court, and which had come from abroad, and were indeed slow in coming and difficult to obtain, he exercised his discretion to order a stay. The submissions[34]We must start with three broad observations on the submissions addressed to us on behalf of the defendants. First, we recognise that the summary of counsel's submissions will not do justice to the immense amount of learning deployed. Given the nature of these proceedings, we have sought to do no more than briefly summarise the essential contentions.[35]Our second observation is that from time to time we have had some difficulty in understanding precisely what was being urged on behalf of the defendants. Sometimes the focus was clear and obvious, the ground was double jeopardy. Sometimes the focus was some rather wider aspect of abuse of process, and sometimes, the forensic appeal was directed to a broad concept of fairness. At times indeed there were concentric circles to the argument, with double jeopardy as the inner ring, and unfairness and abuse of process the outer. More than once we had to remind ourselves that Mackay J gave leave to appeal on two specific issues.[36]On the basis that we might conclude (as we now have) that Mackay J did not find that there was sufficient evidence available to the prosecution to justify terrorism charges before the conclusion of proceedings at Birmingham Crown Court, Mr Blaxland and Mr Munyard submitted that he came to the right result, but for the wrong reasons. He should have concluded that there was sufficient admissible evidence to require the defendants to be charged with terrorist offences. This raised the third problem, and we adjourned the hearing for argument both on the question of jurisdiction, and the merits.[37]The right given to the prosecution to appeal a terminating ruling was introduced by Part 9 of the Criminal Justice Act 2003 (“the 2003 Act”). This supplemented the right to appeal interlocutory rulings in preparatory hearings in serious or complex fraud cases (section 9(11) of the Criminal Justice Act 1987) and interlocutory rulings in preparatory hearings for complex, serious or lengthy cases (section 35(1) of the Criminal Procedure and Investigations Act 1996). Sections 57 and 58 of the 2003 Act make general provision for an appeal to this court by the prosecution with leave of the judge, or the Court of Appeal. Section 61 provides:
“ (1) On an appeal under section 58, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates. (2) Subsections (3) and (5) apply where the appeal relates to a single ruling. (3) Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence. (4) Where the Court of Appeal reverses or varies the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following- (a) order that proceedings for that offence may be resumed in the Crown Court, (b) order that a fresh trial may tale place in the Crown Court for that offence, (c) order that the defendant in relation to that offence be acquitted of that offence, (5) But the Court of Appeal may not make an order under subsection 4(a) or (b) in respect of an offence unless it considers it necessary in the interest of justice to do so.”
[38]Our attention was particularly focussed on sub-section (5). Essentially, the argument came to this: if the court decides to reverse or vary a ruling under section 61(1) it may only exercise its powers under sub-section (4) (a) or (b), where it is “necessary in the interest of justice to do so”. Inevitably, therefore, this requires consideration of whether the judge should have come to the same conclusion that it was right to stay the proceedings, but for different reasons.[39]The point is a short one, and the argument was limited. Parliament has made no express provision for any defence “cross appeal”. Appeals by the prosecution usually require urgent attention, which, unless there is an appeal from a decision to withdraw a case from the jury, would not normally permit a wide ranging review of the evidence. However, we see some force in the submission that the “interests of justice” test would be sufficiently broad to encompass, on a particular set of facts, consideration of an issue upon which the judge had ruled against the defence, but which was integral to the ruling and to the ground of appeal upon which leave was given. Mr Hilliard for the Crown on this issue conceded as much. We wish to emphasise, however, that this approach does not lead to the conclusion that an appeal by the prosecution enables the defence to raise issues which are not the subject of and at the heart of the ground of appeal upon which leave to appeal was given. Those issues are to be determined in the normal course of the trial, and any appeal following conviction.[40]Mr Hilliard did not argue that this was a clear case in which the defendants were seeking to raise an issue which fell well outside the proper ambit of the present appeal. He suggested that this case should be treated as “borderline”. Given that the only ground of appeal upon which leave was given so far as AB and KA were concerned was: “What material is to be considered in deciding whether a criminal charge is founded upon particular facts”, this was perhaps a generous concession. However, in the light of the Crown’s stance, in the particular circumstances of this case, we decided to hear submissions from counsel for the defendants on the question whether it was open to Mackay J to rule that there was insufficient admissible evidence upon which to charge AB and KA with terrorist offences in the Spring of 2004. IK[41]Mr Ian Burnett QC, on behalf of the Crown, submitted that in relation to the proceedings involving IK, the principle of double jeopardy was confined to criminal proceedings and that Mackay J was wrong to extend them as he did. He pointed to the significant, and acknowledged, differences between proceedings in SIAC and in the Crown Court, arguing that as a matter of principle, the double jeopardy rule should be confined to criminal proceedings, or at its lowest, should not be applied either to deportation decisions or cases decided under the anti-terrorism statutory scheme. Moreover, he argued that the SIAC decision was based on quite different grounds from those relied on by the prosecution in the present proceedings, focussed as it was on the SSHD’s failure to establish a sufficient link with Al Qaeda, something which is irrelevant to the present prosecution.[42]Mr Edward Fitzgerald QC suggested that the judge was entitled to exercise his discretion as he did. He accepted that the decision applying the principles of double jeopardy to the proceedings before SIAC, extended the boundaries of that concept. However, he pointed out that the circumstances in which double jeopardy may come into play do not admit of exhaustive definition, and he particularly emphasised that under the ATCSA regime, a person was at risk of losing his liberty, and that such loss, whatever its intended purpose will be suffered as a penalty. Accordingly, since the underlying facts relative to both sets of proceedings are broadly similar, it was fair that the concept of double jeopardy should be applied, and unfair that it should be withheld.[43]He raised a number of other matters relating to statements made by IK in the SIAC proceedings, on the basis (it was said) that IK understood that he would not be prosecuted. Such statements would now be deployed against him if he were to be tried. This and a number of subsidiary issues raised by Mr Fitzgerald about the possible fairness of any criminal proceedings were considered by Mackay J. He found, in our view rightly, that they fall within the ambit of the trial judge’s control and discretion, and his overriding responsibility for the proper conduct of the trial.[44]The essential question was, therefore, the application of the principle of double jeopardy in relation to the SIAC proceedings. Mr Fitzgerald however further submitted that if his submissions did not find favour, the entire certification process should be deemed to have involved the determination of a criminal charge within the “autonomous meaning” of article 6 of European Convention of Human Rights. He drew attention, by way of analogy, to the proper categorisation of a decision relating to the enforcement of the community charge. (Benham v UK [1996] 22 EHRR 293. AB and KA[45]Mr Burnett’s submission in relation to Mackay J’s decision in AB and KA focussed on two aspects of the factual context, first, the rejection of any suggestion of bad faith or malpractice, and second that the judge accepted that at the time when A and B tendered their pleas at Birmingham Crown Court and indeed when they were sentenced in May 2004, there was insufficient evidence to justify the police charging either of them with terrorist offences. His essential submission was that Mackay J had wrongly elided two distinct issues, the facts on which the prosecution at Birmingham Crown Court depended, and the facts which were or could have been known to the police, but which were not then relied on or available to be used by them. Mr Burnett asked rhetorically, if by error it was only appreciated after the events that one of the persons to whom the passport had been supplied was a terrorist involved in the 11th September atrocity, it would surely be permissible for a prosecution based on a terrorist offence to be pursued. He pointed out that the trial at Birmingham proceeded with unusual alacrity. Much of the evidence now relevant to the present prosecution emerged after May 2004.[46]Mr Blaxland, whose submissions were adopted by Mr Munyard, supported Mackay J’s decision on the basis that the material available to the Crown at the time of the proceedings before Birmingham Crown Court was sufficient to alert them to the possibility of bringing charges under the 2000 Act. He suggested that AB and KA had co-operated throughout the proceedings at Birmingham, and having served their sentences, were now being prosecuted for offences based on substantially the same course of conduct as that alleged against them in the proceedings arising from their admitted involvement in forgery activities. The judge was accordingly entitled to conclude that this would be oppressive. As we have already indicated, he further submitted that the judge should have found that by May 2004 the evidence required to charge the terrorist offences now under consideration already existed. That was sufficient to justify the terminating ruling.[47]Mr Hilliard in response to these submissions argued that after Mackay J’s careful examination of the facts, and all the relevant evidence, he plainly rejected the contention that these defendants should have been charged with terrorist offences by not later than May 2004. A number of important matters justifying the charge had come to light after that date. Of these, perhaps the most significant, was evidence which linked these defendants with the terrorist aspect of LIFG. At Birmingham Crown Court, their contention, and the Crown could not gainsay it, was that their objective was to provide humanitarian assistance, not engage in or promote terrorism. At that stage the Crown could not prove otherwise: from subsequent analysis of the available material, coupled with further information, much of it from abroad, it can now do so, and the proceedings should continue. The Legal Principles[48]The plea in bar of criminal proceedings on the basis that the defendant had been exposed to double jeopardy is rare, not least because the principles are familiar and clear. The continued survival of the principle is confirmed for the purposes of extradition proceedings by references in sections 11 and 12 of the Extradition Act 2003 to the “rule against double jeopardy”. Express legislation was introduced in the Criminal Procedure and Investigation Act 1996 to address and disapply the principle where an earlier acquittal was tainted. A further statutory exception to the rule was created for specific qualifying offences by section 75 to section 77 of the Criminal Justice Act 2003. Accordingly, unless abrogated by statute, the continued application of the double jeopardy principle as a plea in bar is not in doubt.[49]In this appeal the clearest analysis of the principles is to be derived from the decision of the House of Lords In Connelly v DPP [1964] AC 1254, and in particular, the now repeatedly cited passages in the speech of Lord Devlin at 1359-1360: “As a general rule a judge should stay an indictment…when he is satisfied that charges therein are founded on the same facts as the charges in the previous indictment on which the accused has been tried, or form or are part of a series of offences of the same or similar character as the offences charged in the previous indictment…but a second trial on the same or similar facts is not always unnecessarily oppressive and there may be in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of that particular case, exercise his discretion as to whether or not he applies the general rule”.[50]Consideration of the principles relating to double jeopardy lead naturally to consideration of the question whether any particular set of criminal proceedings constitutes an abuse of the process of the court. The power of the court to protect its processes from abuse, and to order that a criminal prosecution should be stayed is sufficiently well established to preclude any anxious parade of legal authorities which support the principle. Again, however, it would be helpful to the argument advanced before us to note the further observation of Lord Devlin in Connelly that : “If the Crown was allowed to prosecute as many times as it wanted to do on the same facts, so long as for each prosecution it could find a different offence in law, it would be a grave danger of abuse and injustice to defendants…. There is another factor to be considered, and that is the courts’ duty to conduct their proceedings so as to command the respect and confidence of the public. For this purpose it is absolutely necessary that issues of fact that are substantially the same should whenever practicable be tried by the same tribunal and at the same time…no system of justice can guarantee that every judgment is right, but it can and should do the best to secure that there are not conflicting judgments in the same matter”.[51]We must refer to two cases cited to Mackay J. In R v Beedie [1998] QB 356 a defective flue in a gas fire caused the death of a tenant. The landlord was prosecuted for breaches of the relevant Health and Safety Regulations. He pleaded guilty before the Magistrates. He was fined. Further proceedings were taken against him by the local authority under the Housing Act 1985. Again, he pleaded guilty. He was granted a conditional discharge. In both sets of proceedings the death of the tenant was opened as part of the prosecution case. At the inquest into the death the Coroner ordered the defendant to give evidence, indicating that as he had already been prosecuted he was no longer in criminal jeopardy, and he therefore could not suffer prejudice by answering incriminating questions. A verdict of unlawful killing was returned. Later, the defendant was charged with manslaughter. An application to stay the indictment on the ground of autre fois convict was rejected. Accordingly he pleaded guilty. On his appeal, this court concluded that the proceedings should have been stayed “because the manslaughter allegation was based on substantially the same facts as the earlier summary prosecutions, and gave rise to prosecution for an offence of greater gravity, no new facts having occurred, in breach of the principle in R v Elrington [1861] 1 B and S 688”, and the observations of Cockburn CJ that “whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form”. The appeal did not succeed on the basis that the judge was wrong to reject the plea of autre fois convict. This would apply only where the same offence was alleged in the second indictment as in the first. Rose LJ considered Lord Devlin’s observations in Connelly, and reminded himself of the further observation by Lord Reid that he could not “disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged at the first trial”. In short, the essential feature of the decision was disapprobation of a prosecution for an offence of greater gravity in the absence of new facts. Nothing in Beedie suggests, for example, that a defendant who has been convicted of inflicting grievous bodily harm with intent may not be prosecuted for murder if the victim of the attack dies after the defendant’s conviction of the section 18 offence.(R v Thomas [1951] KB 26)[52]In Fofana and Belise v Deputy Prosecutor Thubin, Tribunal de Grande Incidents de Meoux, France [2006] EWHC 744 the Administrative Court considered whether the appellants’ extradition was barred on the ground of double jeopardy. The appellants were arrested in June 2005 taking delivery of a consignment of computer equipment. The authorities in France, who were anxious to achieve the appellants’ extradition, issued a warrant which proceeded on the basis that the arrest in this country was connected with a serious and widespread conspiracy to defraud. Before the extradition proceedings could go ahead, it was decided that the appellants should be prosecuted “in respect of substantially the whole range of transactions” alleged with varying particularity in the warrant. In the end, however, the CPS sought committal to the Crown Court on a single charge of using a false instrument, effectively confined to the offence which had led to the arrest June 2005, but supporting the allegation by reference to allegedly false documents relating to the transactions originally charged. After considering Connelly and Beedie, and a passage in the speech of Lord Hutton in R v Z [2000] 2 AC 483, it was agreed by both sides that for the purposes of the Extradition Act “double jeopardy” should “be taken to include both the plea in bar and the long established jurisdiction of the court to stay proceedings as an abuse of process. Either constituent is a means of protecting a defendant from “double jeopardy”.[53]Auld LJ continued, after analysing the essential features of the case, at para 28 that “The fact that it (the Crown Prosecution Service) chose to frame a prosecution on only one transaction, notwithstanding the material as to others available to it and lying, albeit unused, in the prosecution papers, would, I think, make it difficult for an English judge to resist an application for a stay of an abuse of process such a prosecution as that now sought by the French authorities in these extradition proceedings”.[54]This sentence can be misunderstood. Even if his language was appropriate to describe double jeopardy as it applies to a plea in bar and was not confined to proceedings under the Extradition Act, Auld LJ was not addressing material of which the CPS was ignorant, or which it had no chance to analyse and assimilate or which it should have analysed and did not. The CPS was fully possessed of all the relevant information which would have enabled it to proceed with the prosecution on a very wide basis, but it “chose to frame the prosecution on a single transaction”. The relevant material was actually available to it, in the sense that it was considered, and the CPS decision was made when it was fully informed of all the essential facts.[55]Mackay J’s attention was also drawn to the then recent decision of this court in R v L [2006] 1 WLR 3092. A baby died while in the care of his parents. In care proceedings it was held that, while the death was undoubtedly culpable, it was not possible to say which of the two parents had caused the fatal event. The father was subsequently prosecuted on what were accepted to be the same essential facts and convicted of manslaughter. He sought to appeal on the basis that the prosecution, having regard to the finding in the care proceedings, should have been stayed as an abuse of process. This court concluded that the trial judge had been right to refuse a stay. Para 60 of the judgment reads:
“…..In our view, once it is appreciated that in the care proceedings the appellant was not being prosecuted, and that he was never at risk of conviction, and that the judge who decided those proceedings lacked jurisdiction finally to exonerate or condemn the appellant and, if to condemn him, to pass sentence, any such concerns would be quickly extinguished. Indeed public concern might be greatly engaged if it were thought that criminal proceedings affecting the public interest, and in this case the death of a baby, had in effect been decided by a court lacking due authority, and not “competent” for the purpose. These concerns would be that much greater, if, as here, the determination were made in private.”
Conclusions in relation to IK[56]It was accepted before Mackay J, and he acknowledged, that previous successful applications for a stay based on the fact of previous proceedings (whether on the grounds of double jeopardy, or broad abuse of process or fairness grounds) have been restricted to those cases where both sets of proceedings were criminal proceedings.[57]It is true that, as Mr Fitzgerald cogently argued, the consequence of the certification proceedings under section 21, as they affected IK, was that he was deprived of his liberty, and that this continued until SIAC decided that the certificate should be cancelled. However, IK was not being prosecuted, and he was never at risk of conviction. When he was detained, he was not being punished for any offence. Indeed one of the great concerns about the certification process was the detention of an individual when a prosecution, and therefore conviction, were out of the question. In our judgment, the proceedings before SIAC were indubitably not, and did not determine, criminal proceedings.[58]Moreover, if IK were to be convicted of these present terrorist charges, there would be no inconsistency between SIAC’s decision (reached on the basis it was) and the verdict of the jury (which would be reached on completely different evidence.) The present proceedings will involve the deployment of a considerable body of additional evidence, much of it obtained following the searches of the premises of the other defendants, and on the basis of which the joint charges are now made against all three of them. Furthermore, the issues in the SIAC proceedings were different and are not replicated in these proceedings. In particular, it was a specific feature of the certification decision that IK was associated with Al Qaeda, and the absence of sufficient evidence to establish this contention to the satisfaction of SIAC was critical to the decision that the certificate should be cancelled. The issues raised in these proceedings are considerably broader, and the allegations of terrorist activity go well beyond any alleged association with Al Qaeda.[59]The reality is that SIAC was not a “competent” court for the purpose of criminal proceedings, just as the family court was not a “competent” court for these purposes in R v L. There are obvious differences between care proceedings and those which engage the attention of SIAC. However both are non-criminal proceedings, held in private, and the essential public interest features which underpinned the decision in R v L apply to this case.[60]In our judgment, as a matter of principle, double jeopardy is not available as a plea in bar unless both sets of proceedings under consideration are criminal proceedings. Given the developing jurisprudence in relation to abuse of process there is no realistic scope for, nor any purpose in, developing the concept of double jeopardy beyond its established limits. Anything falling outside these limits which savours of abuse of process, or unfairness, or oppression, can be addressed and decided on now well established principles which retain a valuable measure of flexibility to allow for further development, as and when necessary.[61]In these circumstances it was inappropriate for the principles of “double jeopardy” to be extended and applied to the proceedings before SIAC and these present criminal proceedings. As this formed the essential foundation for the conclusion that the current trial of IK would be oppressive, the stay order made by Mackay J should be set aside. Conclusions in relation to AB and KA.[62]Mackay J’s decision proceeded on the basis that the case involving these defendants amounted to double jeopardy within the ambit described in Beedie. It was not, as the decision in IK was, based on a purported extension of double jeopardy principles. Both sets of proceedings were criminal, but they addressed quite different offences. The material used in the forgery prosecutions will again be deployed in the present proceedings, but the forgery proceedings did not include any allegation, direct or indirect, relating to terrorist activities, and although investigations were in progress, the self-proclaimed humanitarian motivation of the defendants formed a critical ingredient of them. The Crown suggests, and will seek now to prove, that these claims were utterly misleading. Based on the evidence currently available it is alleged that these defendants were involved in terrorist activities, and that these activities are now linked to IK.[63]We have specifically addressed the question whether there was sufficient evidence available to the police either by March 2004 (when the defendants pleaded guilty to forgery offences) or May 2004 (when they were sentenced) which would have justified charging them with these terrorist offences. It is, of course, a well understood obligation of the prosecution that a defendant should not be detained without charge when sufficient evidence to charge exists. We have considered the material drawn to our attention. We can see no basis for interfering with Mackay J’s conclusion on this issue. In particular, we reject the suggestion that either defendant made admissions in interview which would have supported terrorism charges. The stark reality is that the evidence to justify prosecution for these terrorism offences was not available in May 2004. In any event, we do not consider that the question of double jeopardy is answered by considering whether or not there was evidence in existence, and available to be analysed by the prosecution, which would, if so analysed, have justified charging the defendants with the present offences, at the time when they pleaded guilty and were sentenced for forgery offences.[64]In essence Mackay J’s decision was based on the premise that the material available to the Crown during the early part of 2004 should have been sufficient to alert the police to the fact that there might have been more serious implications to the proved activities of the defendants than forgery, and that no attempt was made to hold up the forgery proceedings while the further material was properly investigated. It was conceded in argument that this amounted to a considerable extension of the principles of double jeopardy. So it did. We can see no warrant or necessity for any such extension, in effect for the same reasons which led to our decision in IK. If on the basis of bad faith, oppression, or a high degree of police incompetence conducive to a miscarriage of justice, these proceedings amounted to an abuse of process, Mackay J would have halted them. Such grounds were not established.[65]Further the evidence relating to the forgery offences was not the same or substantially the same as the evidence supporting the terrorist offences. The facts are different, significantly so. AB and KA were not directly or indirectly in “jeopardy” for these offences, and they are not facing sequential trials for offences on an ascending order of gravity on the same facts. Accordingly, we are unable to accept that Beedie has any application to the present case. Double jeopardy was not available as a plea in bar. The decision to stay the proceedings against AB and KA was not justified, and should be set aside.[66]We also question the premise that the prosecution was under a duty to delay the original forgery proceedings. If the prosecution had sought an adjournment of the sentencing decision in May 2004, we have no doubt that the defendants, and those acting for them, would have protested vigorously. They would have been fully justified in demanding to know, and would have demanded to know, the basis for the allegations of terrorism which would have justified an adjournment, and would have extracted a concession from the Crown that there was insufficient material to justify charges. Interests of Justice[67]Finally we turn to the question of whether or not the interests of justice demand that these three defendants be tried in the Crown Court for terrorist offences. These are grave offences. It is in the public interest that they be tried unless there are compelling reasons to the contrary. Here there are none. Most of the points put before us have already been addressed by Mackay J in considering the applications to stay the proceedings on the grounds of abuse of process. He rejected them and so do we. There may have been a period of uncertainty for each of the accused, but they could have been under no illusion that they would never be prosecuted for these offences. The delay between arrest, charge and trial has not been exceptional and has not been the fault of the prosecuting or investigating authorities. By their very nature international terrorist offences are complex and take longer to investigate than most domestic offences. The authorities are dependent to a considerable extent on foreign agencies who will have their own priorities.[68]Accordingly, Mackay J’s rulings in relation to all three defendants will be reversed and in the interests of justice we order that the proceedings against each of them be resumed in the Crown Court.