Altimimi, R. v [2008] EWCA Crim 2829

[2008] EWCA Crim 2829Case No 200704038/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 6th November 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LATHAM
(VICE-PRESIDENT OF THE CACD)
MR JUSTICE GROSS
MR JUSTICE LLOYD JONES
Between
R E G I N ACrownv
Between
OMAR ALTIMIMI
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr I MacDonald QC appeared for ApplicantMr T Barnes QC & Mr M Taylor appeared for Crown
J U D G M E N T (As Approved by the Court)

LORD JUSTICE LATHAM:

[1]This is an application for leave to appeal against conviction and sentence. We propose firstly to deal with the application for leave to appeal against conviction.[2]On 4th and 5th July 2007 in the Crown Court at Manchester the applicant was convicted of six offences of possession of an article for a purpose connected with the commission, preparation or instigation of an act of terrorism, under section 57 of the Terrorism Act 2000, acquisition of criminal property, contrary to section 329 of the Proceeds of Crime Act 2002 and attempting to possess criminal property. He was sentenced to 9 years' imprisonment on each of the counts based upon breaches of section 57 of the Terrorism Act 2000 and 12 months' imprisonment in relation to the last two offences, all those sentences were to be served concurrently.[3]The application before us is a renewed application, the single judge having refused it.[4]We deal with the facts in so far as they are relevant relatively shortly. The police interest in the applicant started when a large sum of money was transferred in 2006 to an account at the Nationwide based on a forged document. Of these monies £3,000 was transferred into an account held by the applicant. When the applicant sought to withdraw the funds the police were informed; and on 24th March 2006 he was arrested on suspicion of money laundering. That was essentially the basis of the last two counts in the indictment. He was searched and; it became apparent that he had an interest in two addresses, 10 Eastbank Street Halliwell, Bolton and 13 Landsdowne Road, Bolton. Police went to those addresses and seized computers. Five of the counts related to material found on the computer at Landsdowne Road; one count related to material seized from the computer at east bank street.[5]The material contained on those computers which formed was material which clearly "related to" terrorist activity. The first count was in respect of an organisational chart entitled "Mujahideen Strategy". The second count related to a file which contained instructions for the making of a detonator. The third count related to a file containing instructions on the making of an explosive device. The fourth count related to a file containing material giving guidance and instructions on the creation of and use of chemicals, explosives and bombing strategies. The fifth count related to a file containing material providing instructions for the making of a nail bomb, and the sixth count related to further instructions and guidance in relation to the other material which had been found on the computers.[6]The issue at trial was essentially whether or not the applicant had possessed those items. The applicant did not give evidence but had denied possession in interview and relied on his interviews. His case was that he had no connection with the computers or, if he did, other people had an opportunity to access those computers. He had no knowledge in any event of the contents of the files. As an additional argument it was pointed out that a number of the files were ZIP files, in other words they were files which would have had to be opened in order to enable anybody who had downloaded them to appreciate their content and there was no evidence that any of the ZIP files had been opened.[7]The first basis upon which the matter came to this court was based upon grounds of appeal which criticised the judge in relation to the directions that he gave to the jury to deal with that issue; in other words, it was submitted that the judge had failed to direct the jury adequately as to the necessary matters of which the jury had to be sure in order to be able to find that the applicant possessed that material.[8]The single judge said that the directions were correct. There is no need to go through the summing-up in detail. This experienced judge gave to the jury straightforward, readily understandable and entirely accurate directions as to the jury's task in determining whether or not the applicant possessed those files. We dismiss the application summarily in relation to those grounds.[9]However, today, Mr MacDonald on behalf of the applicant has applied for leave to re-amend his grounds to include a ground based upon the decision of this Court in R v Zafar & Ors [2008] 2 Cr App R 8, that is page 84. The basis upon which he submits that Zafar is relevant is that in Zafar the court concluded, in a judgment given by the then Lord Chief Justice, that the jury had to be satisfied that there was some direct connection between the material that was found in the possession of a defendant and a proposed act of terrorism. Section 57 of the Terrorism Act should be construed accordingly. It is necessary therefore to look at the section in order to understand what the court was there saying. Section 57 provides:
"(1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism."
The court held that that subsection had to be interpreted as if it read:
"A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that he intends it to be used for the purpose of the commission, preparation or instigation of an act of terrorism."
That decision was a decision which postdated the trial, with which we are concerned. Not surprisingly, therefore, the judge did not give a specific direction to the jury in those terms. Mr MacDonald, on the applicant's behalf, submits that that renders the conviction at least arguably unsafe.[10]We have considered that submission in the light of the material with which the court was concerned at this trial. The prosecution case, as expressed by the judge in the summing-up, was that this material indicated that the applicant was what was described as a "sleeper"; in other words, he was a person who had the material on his computer ready to be used if and when either he or others considered it appropriate for that material to be used. That was implicit in the way the case was put to the jury and it was essentially the way that the prosecution sought to establish that the applicant possessed that material.[11]It seems to us, in those circumstances, that the inevitable consequence of the jury's verdicts in this case is that the only conclusion that could be reached from possession of the material was indeed that it would be used in the way that the prosecution were seeking to persuade the jury. It follows that although the judge did not direct the jury as he might have done had he had the advantage of seeing the judgment in Zafar, it can make no difference to the ultimate verdict in this case, bearing in mind that what the jury would have to be satisfied of was that the circumstances of possession gave rise to a reasonable suspicion that he intended to use it.[12]In our judgment, in the light of the jury's verdict as to possession, that question answers itself. We accordingly conclude that these convictions are safe; and the application must therefore be dismissed. (Submissions re: sentence)

LORD JUSTICE LATHAM: We turn then to the application for leave to appeal against sentence. We have outlined the facts and there is no need to deal with them in any greater detail, save to say that it is clear from the jury's verdict that the material here was material which this applicant had downloaded and for a purpose. The judge had to look at the overall criminality involved. The clue to his approach is contained in a short passage in the sentencing remarks where he said:

"I have concluded that the appropriate overall sentence in relation to the Terrorism Act offences is one of 9 years' imprisonment. There is room for a legitimate difference of opinion as to how that total should be reached. I propose to impose the sentence concurrently on each counts 1 to 6."
One can see from that that the judge was looking at the matter in the round, considering whether or not to impose consecutive sentences or whether to impose concurrent sentences. He came to an overall conclusion as to the criminality, which, in our judgment, cannot be faulted and hence the sentence of 9 years' imprisonment. The fact that it is close to the maximum of 10 years' imprisonment for a single offence is explained, in our judgment, by the passage to which we have just referred.[14]We do not consider therefore there are any reasonable grounds to suppose that this sentence could be interfered with by this court. Accordingly the application is refused.