Sardar v R [2016] EWCA Crim 1616

Case No 201502823C3

[2016] EWCA Crim 1616

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT AT WOOLWICH

The Hon. Mr Justice Globe

T20147451

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 03/11/2016

Before

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION

(SIR BRIAN LEVESON)

LORD JUSTICE TREACY

MR JUSTICE HOLROYDE

Between

ANIS ABID SARDARAppellant

THE CROWNRespondent

Danny Friedman Q.C.and Richard Thomas

(instructed by Birnberg Peirce & Partners, London) for Appellant

Max Hill Q.C.and Barnaby Jameson

(instructed by Crown Prosecution Service) for Crown

Hearing Hearing date : 18 October 2016

Judgment

Sir Brian Leveson P :

[1]On 21 May 2015, in the Crown Court at Woolwich before Globe J and a jury, Anis Abid Sardar, now 39 years of age, was convicted of murder and conspiracy to murder; no verdict was sought on the alternative count of conspiracy to cause an explosion. On the following day he was sentenced to life imprisonment on each count concurrently; the minimum terms specified were 38 years and 25 years respectively, with time spent on remand to be deducted. The relevant certificate of conviction for terrorist offences was made as was forfeiture order in relation to two computer discs.

[2]With the leave of the single judge, Mr Sardar now appeals against sentence; applications to appeal against conviction were refused. With the assistance, pro bono,of Danny Friedman Q.C. (who did not appear in the Crown Court) and Richard Thomas (who did appear before Globe J), he renews his application for leave to appeal against conviction: in the interests of clarity, we shall refer to him as the appellant throughout.

[3]In addition to pursuing the grounds of appeal originally advanced (one of which was abandoned shortly before the hearing), Mr Friedman makes application pursuant to s. 23 of the Criminal Appeal Act 1968 (“the 1968 Act”) to rely, at least in part, on fresh evidence from three witnesses with ancillary applications in relation to two (referred to as witnesses ‘C’ and ‘D’) that they give evidence anonymously and that their names should only be disclosed to the prosecution within a tightly confined confidentiality ring.

[4]The renewed application and the new grounds of appeal are resisted by Max Hill Q.C. and Barnaby Jameson on behalf of the Crown who have conducted the case throughout. Further, neither they, nor the Crown Prosecution Service are prepared to sign the required undertakings in relation to witnesses C and D with the result that the case has proceeded on the basis that the prosecution has seen only redacted copies of these statements.

The Facts

[5]During 2007, a number of improvised explosive devices (“IEDs”) were recovered or exploded on roads leading west from Baghdad between two American bases where American patrols operated. Thus, on 19March 2007, an anti-personnel device (“bomb 1”) was recovered intact and examined by an American bomb disposal team. On the following day, an improvised explosive device (“bomb 2”) containing 60 pounds of explosive was discovered by American troops following a firefight.

[6]On 27 September 2007, an American ‘Stryker’ armoured vehicle on patrol in the area of North Western Baghdad set off an IED when its weight triggered the pressure plates on the device (“bomb 3”). Tragically, Sgt. First Class Randy Johnson, who was travelling in the vehicle, was killed and a number of other occupants wounded. Finally, on 14 October 2007, a similar device to bomb 3 (“bomb 4”) containing 60 lbs of explosive was discovered and safely detonated.

[7]The prosecution case was that the appellant had been directly involved in the construction and/or deployment of these bombs with the requisite intent for murder. He had initially travelled to Damascus from the United Kingdom, apparently for the purpose of study, before crossing to Iraq. The prosecution case relied upon the following evidence: i) The unusual nature of the four devices recovered and similarities in their construction. There were two bomb disposal teams operating in the area where the bombs were found. Two bomb disposal officers, Bruce Benson and Marcus Smith gave evidence that during their tours of duty, they had dealt with 325 and 125 IEDs respectively and only found 6 to 12 and 3 to 4 respectively that used a similar pressure plate design. ii) The fact that the devices had been deployed in a relatively small geographical area, all within a mile of each other and two within a couple of hundred metres. All were within the American patrol district. iii) The four IEDs had been deployed over a relatively short time frame (March to October). iv) The discovery of the appellant’s fingerprints on bombs 2 and 4 on the adhesive side of black electrical tape removed from plastic wrapped around the battery. The fingerprints of another individual Adnan were found on all four devices including parts recovered from the exploded IED. v) The presence of the appellant in the region during the relevant time and his return to the United Kingdom on 22 November 2007 shortly after the last bomb was discovered. vi) The file content of CDs recovered from the appellant in 2012 showed interest in explosives and contained a recipe for TNT, the explosive used in bomb 1. A CD recovered in 2014 included material hostile to the United States. vii) Lies in the appellant’s prepared statement in which he denied any involvement “directly or indirectly” in the preparation of an IED “in Iraq or any other place or in relation to any other terrorist activity”. This emphatic denial was contradicted by the fingerprint evidence and material on CDs. He had then declined to comment in subsequent interviews.

[8]At the close of the prosecution case, a submission was made that there was no case to answer in relation to the allegation of conspiracy to murder. Globe J accepted that, to succeed, the prosecution had to show that the appellant had jointly participated in the offence as a principal by playing a part in the construction of the device that had killed Sgt Johnson. He rejected the argument in terms:

“… despite the fact that there is no direct forensic evidence such as the defendant’s fingerprints found on any part of what was recovered on device three, in my judgment there is sufficient evidence on the overall circumstances that would enable a reasonable jury on one possible view of the evidence to draw the adverse inference that the defendant did play a role in the construction of device three, and is guilty of the offence of murder on count 1.”

This ruling is one of the grounds on which the appellant seeks leave to appeal conviction.

[9]The appellant then gave evidence. His case, as a man of good character, was that he had been acting in lawful and proportionate defence of Sunni communities who were under threat from Shia militia. His fingerprints had not been found on bomb 3 (which had resulted in the fatal explosion); he had no recollection of being involved in its construction and there was no evidence that he had been.

[10]The appellant explained that he had gone to Syria on a number of occasions to study. There he had met a man by the name of Abn Mohammed and had crossed to Iraq in 2006 to assist him in getting his family out because of escalating violence between the Sunni and Shia communities. He had been trained in the use of an AK47 for defence. Once the family had left, he had stayed behind to see if he could assist.

[11]He had met Sajid Adnan in 2007. He was told they were making IEDs to protect Sunni villages from Shia attack. He was asked to help and he did assist in the construction of a number; he said that four or five people (whom he did not identify) were involved in the work. It had not occurred to him that they could kill innocent people. He had never seen explosives and had not been involved in their deployment. He believed that his Islamic views were moderate. He had never seen anything about explosives on the CDs. He had never opened the other CD and thought its content was jurisprudence.

[12]The appellant admitted that he had lied to the police about his involvement in the preparation of IEDs but said that he had been too scared to say so: it had been seven or eight years previously and he had tried to forget about it. He had not spoken to anyone in the UK about what had happened and did not think the authorities would believe his story.

[13]When cross-examined, the appellant said that he disagreed with the American presence but asserted that he had not been there to attack them. He was sure the locals would have been told where the bombs were located. He denied knowing that the pressure plates were designed to blow up large vehicles rather than those of normal width. He expressed sorrow at the death of Sgt Johnson whom he regarded as a casualty of the war caused by politicians. He denied being prepared to take his anger out at the Americans for what was happening in Iraq. He denied that he adopted the anti-American views that appeared on the CD; he had not opened it. He had been acting in the defence of Iraqi people, not as a fighter.

[14]Two character witnesses were called on behalf of the appellant although the Judge noted that, despite their close ties to him, neither knew that he had gone to Iraq. In addition, the defence sought to rely on the evidence of two other witnesses (identified only as ‘A’ and ‘B’) to give evidence, anonymously and without their names being identified to the prosecution, in support of the defence that the appellant was acting in lawful defence of the Sunni community. The judge’s refusal to permit this evidence to be adduced is also the subject of application for leave to appeal.

[15]In the event, the issues for the jury, on the count of murder, were whether they were sure that the appellant had participated in the construction of the bomb 3 and if so whether or not he was acting unlawfully in participating and not in lawful and proportionate defence of another. In relation to the count of conspiracy to murder, there was no dispute that the appellant was a party to an agreement to construct IEDs so that the issue, as in relation to murder, was whether or not that agreement had been unlawful. The allegation of conspiracy to cause an explosion was put as an alternative to this latter allegation.

Case to Answer

[16]The first ruling which Mr Friedman seeks leave to challenge concerns the judge’s rejection of the submission that there was no case to answer in relation to the count of murder. He submits that the judge rightly accepted the submission made on behalf of the defence at trial that this allegation should not be left on the basis that the appellant was part of the assembly line that produced all four IEDs (and, perhaps, others) so that he was liable as a secondary party with the result that he could only be convicted if he had had a part in making the IED that killed Sgt. Johnson. Following from that position, he argued that there was insufficient evidence to justify the inference that the jury could exclude the possibility that the bomb had been made by others.

[17]The traditional approach identified by Lord Lane CJ in R v. Galbraith

[1981] 1 WLR 1039

(if a reasonable jury properly directed could not on the evidence find the charge proved beyond reasonable doubt) concerned the weight to be attached to evidence implicating the defendant upon which the Crown relied. The application of that principle to cases of circumstantial evidence, however, has been the subject of further debate, such that the common law position was summarised in the Supreme Court of South Australia, in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, by King CJ in these terms:

“[I]t is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. … Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. … He is concerned only with whether a reasonable jury could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence. I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for the prosecution was accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

[18]That approach has been followed in Edwards

[2004] EWCA Crim 2102

at [83-5] and adopted in R v. Jabber

[2006] EWCA Crim 2694

(see [21]). More recently, in Darnley

[2012] EWCA Crim 1148

, Elias LJ posed the approach in this way:

“…we think that the focus should be on the traditional question, namely whether there was evidence on which a jury, properly directed could infer guilt. It is an easier test, not least because it focuses on what a reasonable jury could do rather than what it could not do. Reasonable juries may differ because the assessment of the facts is not simply a logical exercise and different views may reasonably be taken about the weight to be given to potentially relevant evidence. The judge must be alive to that when considering a half-time application. Of course, if the judge is satisfied that even on the view of the facts most favourable to the prosecution no reasonable jury could convict, then the case must be stopped.”

[19]Mr Friedman argued that it was impossible to exclude the possibility that a different team of bomb makers had worked to a similar design, particularly in the light of the differences in the rubber tubing, the type of explosive used and the number of wooden blocks involved. These are undeniably facts which could point to the involvement of different hands but to be put against those facts are the following features: i) There was at least one common bomb maker whose fingerprints were on all four devices. ii) The devices were unusual in construction (only 9-16 of this type out of 450 seen over the relevant period by two bomb disposal experts) and had significant forensic similarities relating to the notches, the removal of corrosion at the end of the plates, the use of metal bars, wooden blocks, rubber tubing, tape, wiring and type of battery (in relation to the three batteries that were recovered). They were designed only to be detonated by heavy as opposed to light vehicles and were very different to the flimsy construction usually seen in such devices. iii) The appellant’s fingerprints were found on the adhesive side of electrical tape removed from plastic wrapped around the battery of one IED and also on the adhesive tape of another IED. The absence of such evidence in relation to the battery of the IED that killed Sgt. Class Johnson was not evidence of non-participation: it had not been recovered because it was attached to the IED that had exploded. iv) Although no conclusion can be drawn from the precise location of any of the devices (obviously planted after manufacture), the fact is that their geographic proximity in a particular triangle of land with two within a few hundred metres of each other pointed to a common source.

[20]Without reviewing (or necessarily accepting) the proposition accepted by Globe J that the appellant could not be convicted of murder as a secondary party on the basis of his involvement in a joint enterprise to construct bombs designed to be lethal and thus with the intention to kill or cause serious bodily injury which then did, in fact, kill, we have no doubt that the learned judge was correct to conclude that there was a case to answer on the charge of murder. The number and features of the four IEDs (and the circumstances generally) were such that it was open to the jury to conclude that they were manufactured at the same time, by the same team and that the appellant was involved in that exercise. Leave to appeal on this ground is refused.

Anonymous Witnesses: The Trial

[21]At the trial, the solicitor for the appellant provided evidence of the extensive efforts that had been made to obtain evidence in support of the case that the appellant was acting in defence of the Sunni community in an effort to limit attacks from the Shiite militia. Application was made to adduce the evidence of two witnesses, A and B, on the basis that they were not to be identified in public but whose identity it was proposed could be disclosed to the court and to the prosecution, but to the latter on the basis of a ‘confidentiality ring’ comprising prosecution counsel, a lawyer from the CPS and two investigating officers with written undertakings being given by each that there should be no further disclosure to anyone. In the event, before Globe J could rule on that application, consent for their names to be disclosed to the prosecution was withdrawn, even if undertakings were given. Thus, the only basis on which they were prepared to give evidence was that they remained fully anonymous to everyone except the court. Alternatively, it was sought to adduce their evidence as anonymous hearsay.

[22]The application was based on reading down the provisions relating to witness anonymity orders set out in s. 86 et seq of the Coroners and Justice Act 2009 (“the 2009 Act”). In short, where an application for such an order is made by a prosecutor, s. 87(2) requires the court to be informed of the identity of the witness but (necessarily) does not require that information to be given to the defendant. On the other hand, should an application be made by the defendant, s. 87(3) requires both the court and the prosecutor to be informed of the identity of the witness. Relying on Art. 6(3)(d) of the ECHR and s. 3 of the Human Rights Act 1998, it was submitted to Globe J that it was appropriate to read into s. 87(3) of the 2009 Act the words “unless to inform the prosecution would deprive the defendant of a fair trial”.

[23]Both applications were refused. In a judgment reserved overnight, Globe J dealt with the facts in this way:

“I am aware of potential formal admissions being offered to be made by the prosecution briefly summarising key facts, including, in particular, the existence of sectarian conflict at the material time, the location of Sunni and Shia populations in the relevant areas west of Bagdad and the formation of watch groups by local communities over the relevant period to patrol defence lines in key locations. These are all matters which support the defence case and the defendant’s evidence that there was an objectively reasonable basis for constructing IEDs to defend the interests of the Sunni communities. This is the key import of the anonymous witness evidence. Their evidence does not and, given the fact that neither of them appear to have had any contact with the defendant or even know him, could not address the separate and specific issues of whether he participated in the construction of the IED that killed Sergeant First Class Johnson… or whether his intention was limited to defensive action against the Shiite militia; or solely or partly involved unlawful action against the US armed forces.”

[24]He also carefully analysed the legislative provisions of the 2009 Act, Part 29 of the Criminal Procedure Rules and the associated Practice Directions and the obligations of the court under the ECHR, together with the relevant authorities and observed that reading additional words into s. 87(3) required consideration of whether or not the defendant would be deprived of a fair trial. He expressed himself satisfied that the defendant could have a fair trial, based on the evidence that had been adduced on his own behalf and, additionally by the admitted facts being placed before the jury.

[25]The judge also rejected the alternative submission of adducing the evidence as anonymous hearsay pursuant to s. 116(2)(e) and s. 114(1)(d) of the Criminal Justice Act 2003. Although initially subject of a notice to appeal, a challenge to the ruling in relation to anonymous hearsay was not pursued and we say no more about it.

Summing Up

[26]Globe J left the issue of defence of another to the jury in terms which are not and could not be criticised. He made it clear that the appellant would be acting in lawful defence of another if in the circumstances as he genuinely believed them to be for the sole purpose of defending Sunni civilians the degree of force used was reasonable; he also emphasised that the defence was not available if his genuine belief was that the IED device would be deployed solely or partly to cause explosions under vehicles containing U.S. armed forces. He also reminded the jury that defence counsel had submitted that there was no evidence of the appellant deploying any device, knowing where any of them had been deployed or knowing anything about American patrols in the area.

[27]As to the background facts, in his summing up, the judge reminded the jury of Admission 50 (reached to reflect the interests of justice): see R v Meyers

[2008] EWCA Crim 2989

[2009] 1 Cr App R 30

per

Lord Judge CJ at [26]) in terms:

“Parliamentary elections took place in Iraq in January 2005 resulting in the appointment of Ibrahim al-Jaafari as prime minister and Bayan Jabr as minister of the interior. Both men were Shia Muslims, and Bayan Jabr was a former commander of the Badr Brigade, a Shia militia. In May 2006 Nouri al-Maliki became prime minister of Iraq. Like his predecessor, he was a member of the Shi'ite Dawa Party. During the years 2004 to 2005 divisions between the Sunni and Shia Muslim sects in Iraq became more pronounced, leading to sectarian conflict which continued during the years which followed. By the autumn of 2006 there had been an increase in the majority Sunni population of the Ghazaliya suburb in Baghdad. Sunnis displaced by the sectarian violence went to live there. The majority Shia population of the Shula suburb in Baghdad -- which stood at approximately 80 per cent before the Iraq war -- increased further by autumn 2006. During the sectarian conflict in Iraq, including the years 2006 and 2007, local communities were known to form watch groups within their areas and to patrol defence lines in key locations. That sets the scene for all of the evidence in the case.”

Anonymous Witnesses: the Appeal

[28]When refusing leave to appeal in relation to this aspect of the case, Edis J observed that there were many sources of evidence as to the state of affairs in Iraq in 2007 and that the defendant had chosen to try to use a particularly difficult one. That led the solicitors to the appellant to seek out other witnesses who could be more specific about the area in which the IEDs were planted and to gather evidence that was more direct and less reliant on hearsay as to the circumstances which the appellant faced when he helped construct the IEDs. Reliance is now placed on two other anonymous witnesses (C and D) together with the evidence of a journalist who is prepared to be identified and whose account is based on his observations and experiences in 2006 and 2007.

[29]In relation to witnesses C and D, with their consent, the court has seen statements which include details of their identities but only redacted statements (removing all evidence which might lead to their identities being discovered) have been disclosed to the Crown. Also with the consent of the witnesses, the appellant has, again, been prepared to disclose their identities within a strict ‘confidentiality ring’ comprising counsel for the Crown, the relevant CPS lawyer and two senior investigating officers with undertakings that there should be no further disclosure to anyone. The Crown were not prepared to give such undertakings and Mr Friedman was not prepared to go further to allow for investigation of C and D not least because, under no circumstances, were their identities to be disclosed to the Iraqi authorities.

[30]There is no doubt that witnesses C and D provide more specific evidence than did witnesses A and B. C refers to the frequency and quality of Shia on Sunni attacks and the need for the Sunnis to act in self defence, explaining how it was not the role of the US authorities to defend Sunnis. Witness D went further and spoke of the need for IEDs in self defence; he also referred to the specific area where these IEDs had been planted observing that Americans were not known to go into that area and that they were used with “as much care as possible and only in areas where those involved in making and planting them were sure as they could be that they would not harm the locals or the Americans”. Mr Friedman argued that this evidence was more specific than that of witnesses A and B and accepted the comparative weakness of the position in relation to those witnesses: he noted that Globe J did not accept that the content of their statements went to the issues (beyond what was contained in Admission 50) and conceded that this conclusion could not strongly be challenged.

[31]A pre-requisite of the evidence upon which Mr Friedman now seeks to rely (before considering s. 23 of the 1968 Act) is that it is or would be admissible. In relation to witnesses C and D, this requires consideration of s. 86 et seq of the 2009 Act and the analysis of the law both before the judge and now advanced. The starting point is s. 86 which provides for anonymity measures that include withholding the name and other identifying features of a witness and removing such details from materials disclosed to any party to the proceedings. An application for such an order is made pursuant to s. 87 which is in these terms: “(1) An application for a witness anonymity order … may be made to the court by the prosecutor or the defendant. (2) Where an application is made by the prosecutor, the prosecutor—(a) must (unless the court directs otherwise) inform the court of the identity of the witness, but

(b) is not required to disclose in connection with the application — (i) the identity of the witness, or (ii) any information that might enable the witness to be identified, to any other party to the proceedings or his or her legal representatives (3) Where an application is made by the defendant, the defendant — (a) must inform the court and the prosecutor of the identity of the witness, but (b) (if there is more than one defendant) is not required to disclose in connection with the application – (i) the identity of the witness, or (ii) any information that might enable the witness to be identified, to any other defendant or his or her legal representatives. (4) Accordingly, where the prosecutor or the defendant proposes to make an application under this section in respect of a witness, any relevant material which is disclosed by or on behalf of that party before the determination of the application may be disclosed in such a way as to prevent – (a) the identity of the witness, or (b) any information that might enable the witness to be identified, from being disclosed except as required by subsection (2)(a) or (3)(a). … (6) The court must give every party to the proceedings the opportunity to be heard on an application under this section. (7) But subsection (6) does not prevent the court from hearing one or more parties in the absence of a defendant and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case …” (a) must (unless the court directs otherwise) inform the court of the identity of the witness, but (b) is not required to disclose in connection with the application — (i) the identity of the witness, or (ii) any information that might enable the witness to be identified, to any other party to the proceedings or his or her legal representatives (a) must inform the court and the prosecutor of the identity of the witness, but (b) (if there is more than one defendant) is not required to disclose in connection with the application – (i) the identity of the witness, or (ii) any information that might enable the witness to be identified, to any other defendant or his or her legal representatives. (a) the identity of the witness, or (b) any information that might enable the witness to be identified,

[32]Mr Friedman points to s. 97(1) which defines ‘prosecutor’ as “any person acting as prosecutor, whether an individual or body” and argues that s. 87(4) envisages the possibility of some limitations on disclosure so that the appropriate course is for the court to adopt the ‘confidentiality ring’ proposed and allow the prosecution to conduct such investigations as it can within that ring and to decide whether there is any material which then falls to be disclosed pursuant to its obligations under the disclosure regime prescribed by the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”). Although the ‘prosecutor’ must be informed, this did not necessarily envisage disclosure beyond the person of the prosecutor. Thereafter, the order could be subject to review.

[33]Mr Friedman also relies on the approach identified in W (Algeria) v Secretary of State for the Home Department

[2012] UKSC 8

[2012] 2 AC 115

which permitted an irrevocable non-disclosure order in relation to a witness who could speak of safety of return of an Algerian national who had been given notice of deportation to Algeria: the complaint was that return would lead to ill-treatment contrary to

Article 3 of the ECHR

. The court was, however, clear that the power should be “most sparingly used” recognising the risk that it could be exploited by the unscrupulous ([19]) and that if any other Article of the ECHR was engaged, the balance would “almost certainly” be struck the other way ([38]).

[34]Mr Hill, on the other hand, submits that reliance on the procedure of the Special Immigration Appeals Commission (with its power to hear evidence in closed session) does not assist in relation to criminal proceedings and the obligations of investigation and disclosure placed upon the Crown by the 1996 Act. The reason that the 2009 Act requires disclosure to the prosecutor of the name of an intended anonymous witness to be called by the defence is specifically so that the obligations under the 1996 Act can be discharged.

[35]To develop that reasoning, we return to the structure of s. 87 of the 2009 Act which, in s. 87(3), mandates (“must”) disclosure by the defendant of the identity of any anonymous witness upon whom reliance is intended to be placed. Although s. 87(4) makes it clear that disclosure is to be prevented prior to the determination of the application, there is a specific exemption in relation to disclosure to the prosecutor.

[36]Neither is it difficult to understand why the legislation is constructed in that way. The court is given a discretion in relation to the identity of a witness in respect of which the prosecution apply because of the obligation placed on the Crown to investigate the antecedents of the proposed witness and to ensure that any application or order is consistent with a fair trial. Thus, the Attorney General’s Guidelines on Witness Anonymity identify the prosecutor’s role (at B3) as:

“(a) To act with scrupulous fairness. (b) To examine with care, and probe where appropriate, the material provided in support of the application and the evidential basis for it. Prosecutors should in particular objectively assess any statement made by the witness or witnesses in question and the grounds on which it is based. (c) To be satisfied before making the application that, viewed objectively, it can properly be said that the order is necessary and in the interests of justice and that the defendant can receive a fair trial. (d) To put before the court all material that is relevant to the application. Courts will rely to a significant extent upon the prosecutor and the investigator to provide relevant material. Material will be relevant if the prosecutor relies upon it to support the application, or if it may tend to undermine or qualify the justification for making the order at all, or for making it in the form sought by the prosecutor. Material is particularly relevant if credibility is or may be in issue, for example if there is a known link between the witness and the defendant or a co-accused. (e) To disclose as much relevant material to the defence as possible without identifying the witness including material that may tend to cast doubt on the credibility, reliability or accuracy of the witness.”

[37]There is no such obligation on the defence and, by definition, no mechanism to require anything to be done to ensure fairness from the perspective of any victim or the public. Rather, if there is more than one defendant, an application by one which requires disclosure of the name to the Crown allows the prosecution to approach that witness as it would one whom it had called anonymously and to investigate and disclose relevant material in such a way as ensures fairness to any other defendant. Neither is it possible to construe the provision in one way if there is only one defendant and differently if there is more than one.

[38]In the circumstances, Mr Friedman being constrained by his instructions in relation to witnesses C and D, in common with the view of the judge in relation to the witnesses A and B, we have come to the conclusion as a matter of law that their evidence is not arguably admissible. Neither is it appropriate to read into s. 87(3) the words “unless to inform the prosecution would deprive the defendant of a fair trial” because that would run counter to the structure of the legislation and deprive the prosecution of the essential ability to do the same research in relation to defence witnesses as they have to do if in relation to any witness whom they wish to call anonymously.

[39]In any event, had this evidence been disclosed, even in redacted form, prior to trial, the prosecution would have conducted such research as it could and, to any extent that the material generated by the research supported the defence, it would have been disclosed or (if pre-trial) suitable admissions made: see, for example, R v. Greenwood

[2004] EWCA Crim 1388

. The appellant’s solicitor, Ms Peirce, instructed Mr Friedman about a case in which that had happened and, as a result, the prosecution was abandoned. There is no suggestion here that this further material, even redacted, has generated such exculpatory evidence. If it did, that would doubtless have been or be disclosed and could be considered.

[40]This analysis does not deal with the entirety of the appellant’s application because reliance is also placed on the evidence of the journalist. We are far from satisfied that this evidence could not have been obtained at the time of the trial (given that the solicitors were introduced to the journalist by Witness B) but, assuming that it was not, it falls to be considered whether it would arguably afford a ground for allowing the appeal.

[41]The argument is premised on the basis that the journalist’s evidence is far more focused on the area in which these IEDs were, in fact, planted. The difficulty, however, is that precisely where the IEDs were planted is not a material allegation which the jury had to consider for the purposes of assessing this defence. It is not (and has not been) suggested that the appellant knew precisely where the IEDs would be left, when they would be left as a trap to anyone who passed over them or the state of the hostilities at the time (which could never be known at the time of their construction). The proximity of the IEDs to each other when planted is relevant to the issue of common manufacture by the same team at the same time, not to the issue of intention. The evidence of intention emerges from what the appellant said and did, the material he had in his possession when he was arrested and his expressed views about the Americans: without calling anyone else who was with him at the time and could speak of the appellant’s experiences, the evidence on these topics could only come from him.

[42]In reality, the groundwork for mounting defence of another was laid by the admissions and the appellant’s evidence: his expressed concern for the safety of Sunnis was fully reflected in the summing up. What others who neither knew nor met the appellant (which number include the journalist) knew or believed does not go to what he intended at the time that he helped to construct the IEDs. To such extent as it might go further than his own evidence, it consists essentially of assertion, or hearsay; it adds to the colour of his evidence but does not materially change it. In the circumstances, we do not consider that it arguably affords a ground for allowing this appeal and leave is refused accordingly.

Sentence

[43]When passing sentence Globe J observed that the jury had rejected his defence that the IEDs were being made solely to defend Sunni villages from imminent attack by Shi’ite militia and that such action was both necessary and proportionate. One possibility was that they had rejected that the action was proportionate in defending the village, drawing a distinction between shooting at advancing militia and blowing up vehicles by the use of mines in which event he was unlawfully intending to cause explosions with the intention of killing unknown numbers of Shia. The prime case advanced by the prosecution, however, was that the target in whole or part had been American troops. Suffice to say that, based on the evidence that he heard, Globe J expressed himself satisfied that the appellant’s actions were not solely focused on Shi’ite militia for the following reasons: i) There had only been a few bombs placed strategically rather than hundreds scattered in the area travelled by Shia militia and these could not have kept them out of the villages. Those recovered had been in the sector regularly patrolled openly by American troops and vehicles. The Judge rejected the appellant’s evidence that he rarely saw such patrols and knew little of their existence. ii) The construction of the pressure plates on the IEDs was such that it could be inferred that they were designed to be activated by heavy wide track vehicles such as those used by the Americans. iii) When the appellant returned to the United Kingdom from Damascus in November 2007 he brought with him material including material of a violently anti American nature. In cross-examination he had displayed his fury at the American intervention in Iraq and the Judge was satisfied that his mind-set was such as to regard the Americans as much an enemy as the Shia militia. iv) The IED recovered on 20 March 2007 provided good evidence that the Americans were being targeted. The team that found the device had been the target of sniper fire. They were ostensibly supporting the Shia and the Shia had little reason to fire on them. The more likely explanation was that it had been a concerted Sunni attack; indicative of the general Sunni attitude to Americans despite their peacekeeping role. It mirrored what the Judge found to be the appellant’s own personal view. v) The appellant’s own explanation for saying nothing to anyone about going to Iraq, or what he did there, defied logic and belief. If his actions had been reasonable and proportionate in defending villages, there was no reason to hide those facts from everyone including those close to him.

[44]Globe J recounted that the victim, Randy Johnson, was a family man with two young children. He had been considered “the father of the Platoon” responsible for the daily running and training of his platoon, showing great compassion to all members of the team. The loss felt by all who knew him was profound. As for the appellant, he was 39 years of age (having been born on 14 December 1976). The judge accepted that he had returned from Iraq in 2007, was married with a young child and that, in the period that followed, there was no evidence of his holding any extremist view or participating in any aggressive action.

[45]In imposing the mandatory sentence of life imprisonment for murder, Globe J sought to identify the appropriate minimum term to be served and noted that, pursuant to para. 5(1) of Schedule 21 of the Criminal Justice Act 2003 (“the 2003 Act”), murders involving the use of explosives or racially or religiously aggravated were of particularly high seriousness and normally attracted a starting point of 30 years. He referred to Reynolds and Rossiter

[2015] 1 Cr App R (S) 24

and various sentence cases involving terrorism e.g. Barot

[2008] 1 Cr App R (S) 31

, Khan and Others

[2013] EWCA Crim 468

and Dart

[2014] EWCA Crim 2158

[46]In deciding whether the case was of exceptionally high seriousness (and so fell within para. 4(1) of Schedule 21 justifying a whole life order), the judge made clear that he had to have regard to not only to the murder of Sgt Johnson but also to the wider conspiracy to murder. The rationale for the making of the IEDs was at least in part for the purpose of advancing a political, religious or ideological cause. Globe J did accept that, given the turmoil of 2007, there was some mitigation in respect of any actions taken against Shia militia but this did not apply to actions against Americans and had to be offset against the specific aggravating factors of significant planning and premeditation and that at least some of the intended targets were performing national service.

[47]Globe J also took into account that the appellant had not travelled directly to Iraq from London to join the conflict but had gone from Syria, after travelling there for the legitimate purpose of study. Noting that although there remained underlying concerns about his ideology which would require monitoring, he concluded that a whole life order was not required. It was in those circumstances that he reached concurrent sentences of life imprisonment both for murder and conspiracy murder with minimum terms of 38 years and 25 years respectively less 240 days on remand.

[48]On appeal, Mr Friedman argues that the fresh evidence is also relevant to an appeal against sentence on the basis that it addresses the extent to which the overall conduct was targeted at the Shia militias rather than US forces. The extent to which fresh evidence should be admitted on an appeal against sentence was considered by this court in R v Rogers

[2016] EWCA Crim 801

[2016] 2 Cr App R (S) 36

referring to the fact that the general principles in appeals against conviction apply also to all sentencing appeals: see R v Erskine

[2009] EWCA Crim 1425

[2010] 1 WLR 183

. Thus, the appellant faces the same problems analysed above in relation to the application to appeal against conviction and, in the context of this case, with the difficulties facing the Crown investigating the material, the same conclusion is inevitable. Globe J accepted that there was some mitigation in respect of any actions taken against Shia militia: that is as far as the argument can be taken.

[49]Apart from that argument, Mr Friedman points to a number of factors which justified a term closer to 30 years or, he submits, below. On the facts of the case, these were that the appellant originally travelled for study rather than to fight; he did not play a leadership role and there was some mitigation based on the need (evidenced at the trial) for the Sunni community to defend itself from Shia militia. At a personal level, the appellant was a relatively young man of good character who in the passage of time since 2007 had demonstrated no evidence of extremist views of conduct but had built a law abiding life (involving a family with a young child). Mr Friedman was not submitting that the judge was not alert to these points but, rather, that he failed to make sufficient allowance for them.

[50]It is beyond argument that, at the very least, the appropriate starting point was governed by para. 5(1) of Schedule 21 to the 2003 Act and could not be less than 30 years. Furthermore, that starting point had to be increased to reflect the fact that the appellant had not been involved only in the construction of one IED but a number, any one of which could have caused multiple deaths: in other words, the conspiracy to murder substantially increased both the culpability and the potential harm of the offending. Good character can count for little in relation to offences of this nature but we do see force in the argument that the appellant was not a leader in this offending and that room, at the upper end, must be left for those higher up the chain of responsibility or involved in more extensive harm albeit that they may not reach the level of requiring a whole life tariff pursuant to para. 4(1) of the Schedule.

[51]We recognise that the trial judge was in the best position to assess the overall criminality, having conducted the trial and been able to form his own impression of the role played by the appellant but, doing the best we can, we have come to the conclusion that some reduction in the tariff would be appropriate to reflect the element of protection of the Sunni community that the judge accepted and his lesser role. In the circumstances, we are prepared to reduce the minimum term from 38 years to 35 years. The sentence in relation to conspiracy to cause an explosion remains but to that limited extent, this appeal against sentence is allowed.