Alamgir & Ors, R. v [2018] EWCA Crim 1553

[2018] EWCA Crim 1553Case No 2016/4281/B5 AND 2016/4400/B5 AND 2016/4283/B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
His Honour Judge Topolski QC
T20150445 and T20160037
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/07/2018
Before
LORD JUSTICE TREACYMRS JUSTICE McGOWANHIS HONOUR JUDGE STOCKDALE QCSitting as a Judge of the CACD
Between
ReginaRespondentMohammed Alamgir1 st AppellantYousaf Bashir2 nd AppellantRajib Khan3 rd Appellant
(Transcript of the Handed Down Judgment.Copies of this transcript are available from:WordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7414 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Sean Larkin QC and Miss Michelle Nelson (instructed by Crown Prosecution Service) for RespondentMr Paul Hynes QC (instructed by The Registrar of Appeals) for 1 st AppellantMr David Gottlieb (instructed by The Registrar of Appeals) for 2 nd AppellantMr Richard Doman (instructed by The Registrar of Appeals) for 3 rd AppellantHearing Hearing date: 21 June 2018

JudgmentAs Approved by the Court

[1]These are appeals against conviction. The three appellants were convicted on 16 August 2016 at the Central Criminal Court. Alamgir was convicted of three offences contrary to s.12(3) of the Terrorism Act 2000, encouraging support for a proscribed organisation. Bashir was convicted of one count, as was Khan. In addition, Khan was also convicted of an offence of arranging a meeting to support a proscribed organisation contrary to s.12(2).[2]The ingredients of the s.12(3) offence in the context of this case required proof that: i) ISIS was proscribed; ii) the defendant addressed a meeting; iii) his words in fact encouraged support for ISIS; and iv) the purpose of his address was to encourage support for ISIS or further its activities.[3]In relation to the s.12(2) offence, the Crown had to prove that Khan: i) arranged a meeting to support a proscribed organisation; ii) knew that its purpose was to support a proscribed organisation or further its activities.[4]The trial judge correctly directed the jury as to the need for the Crown to prove the above elements of the offences. In summary, these appellants had been tried along with others. The case against them was that they were members of a Luton branch of a national group believed to have violent Jihadi views. All three had made speeches at meetings during the holy month of Ramadan in 2015 on occasions between 29 June and 15 July which were designed to encourage support for ISIS. The jury’s verdicts show that that was their intention. In addition, Khan had arranged for a meeting to take place in the garden of a co-defendant (Rahman’s) house. Between March 2014 and November 2015 an undercover police officer had infiltrated the Luton group and was thus able to acquire materials about the appellants’ activities going beyond the content of the speeches which were the subject of counts.[5]The facts of this case are set out in detail in the judgment of this court in R v Alamgir and Others [2018] 1 Cr App Rep (S) 49. That was a judgment of this court relating to appeals against sentence passed after the trial. There is no need for us to repeat the detail set out there.[6]All three appellants appeal on the basis that the judge was wrong to admit in evidence recordings of speeches made on occasions other than those identified in the indictment and evidence of materials gathered about the appellants’ activities more generally. This type of evidence was referred to for convenience as “mind-set material”. In addition, Khan has renewed an application on grounds refused by the single judge. They are: i) The judge failed properly to direct the jury in relation to the applicant’s connection with the Security Services and/or permitted the prosecution to engage in impermissible cross-examination of the applicant in relation to that issue. ii) the judge failed to provide sufficient safeguards to prevent breaches of articles 9 and 10 of the European Convention on Human Rights. We will return later to those applications.[7]The material which is the subject of the ground of appeal common to all three appellants broadly relates to: i) The content of speeches or statements in classes outside the period in the indictment which had been made by Alamgir or Khan, and on one occasion speeches made by other members of the group at which all defendants were present. On that occasion the speaker applauded ISIS’s policy of murdering homosexual men, adding that no one should feel sorry for any kufr (infidel), specifically Britons killed on holiday in Tunisia, temple worshippers attacked in Kuwait, or factory workers in France, one of whom had been beheaded recently by an Islamist extremist. ii) Written materials distributed at events. iii) Material found at an appellant’s premises. iv) Material found on an appellant’s phone or electronic device. v) Previous convictions of non-defendants associated closely with these appellants.[8]The defence argued at trial that the Crown should only be permitted to adduce evidence of the content of the speeches referred to on the individual occasions which featured in the different counts. No evidence of any other speech should be admitted, nor should evidence of conversations between any defendant and the undercover officer. Objection was also taken to the mindset evidence which was said by the Crown to be evidence revealing the nature, depth and commitment of the appellants to radical Islamist beliefs entirely consistent with support for ISIS and the establishment of a Caliphate in territory seized by ISIS. It was contended that the evidence objected to had marginal significance and was either inadmissible or so prejudicial that the judge should exclude it in the exercise of his discretion.[9]The judge rejected the application, holding that the jury was entitled to consider the evidence described. Views such as were propounded in the indicted 2015 speeches at meetings arranged for the purpose of those speeches being heard by an invited audience did not come to the fore suddenly, but developed as a result of a number of factors. At the heart of the Crown’s case was the declaration of the Caliphate on 29 June 2014 in land taken by force by ISIS in Syria and Iraq. Evidence of what the appellants were doing, saying, reading, viewing and writing over a period of time prior to the creation of the Caliphate and thereafter was relevant and admissible to the issues that the jury would have to decide in each case. The jury was entitled to take such evidence into account and it would be unrealistic and untenable for the case to be confined to the consideration of the speeches specified in the counts. There was no unfairness in this; indeed, unfairness would have resulted had the defence submission prevailed, as this would have created a false and misleading picture for the jury.[10]The defence cases were that their speeches represented a legitimate expression of views which were not intended to encourage support for ISIS as a proscribed organisation. Khan went further. Alone of these defendants, he gave evidence and asserted that he had, by 2015, renounced ISIS and its proclaimed leader al-Baghdadi. He claimed to have been approached by MI5 and told them of his reformed views, and to have made speeches against violence and advocating tolerance.[11]The essential issues for the jury in each case therefore were whether they were satisfied that the purpose of the speeches was to encourage support for ISIS and whether a defendant knew at the time he spoke that its purpose was to encourage support for ISIS.[12]The grounds of appeal renew the challenge to the admissibility of the mindset and other material identified above. Mr Hynes QC made his submissions on behalf of all three appellants. It was said that the material adduced was not relevant and that its nature and quantity was prejudicial, and in any event exceeded its probative value. Emphasis was laid on the fact that s.12 of the Terrorism Act does not make it an offence to hold opinions or beliefs which are also held by members of a proscribed organisation, nor does the Act make it an offence to express those opinions or beliefs to other people, or to share them, or to encourage others to share them. What s.12 makes criminal is encouraging support from other people for a proscribed organisation. The argument made was that the admission of materials beyond the speeches indicted would inevitably draw attention away from the need for the jury to consider whether the indicted speeches represented a deliberate encouragement by an appellant of support for ISIS and its activities.[13]There was a risk that the mindset material would lead to a perception of appellants holding offensive and unpalatable views which would deflect the jury’s attention from considering whether words used in speeches in fact encouraged support for ISIS and were delivered with that knowledge and/or intent. Moreover, it was argued that evidence of things said by appellants in the period prior to the indicted speeches had to be seen in the context of events occurring at that time, and would detract from a consideration of an appellant’s state of mind at the time of the indicted speeches. It was also submitted that the admission of material about the past conduct of four non-defendants, Anjem Choudary, Mizanur Rahman, Omar Brooks and Sajjadur Choudhury, was inadequately dealt with in summing up.[14]The arguments summarised above were advanced on behalf of three appellants and resisted by Mr Larkin QC for the Crown. He argued that the material was relevant and admissible. The material was relevant because the jury, in considering each count, had to assess an appellant’s knowledge and purpose. This entailed a consideration of the appellant’s actual views and willingness to espouse such views, and evidence of prior utterances would assist the jury’s assessment of what an appellant’s purpose was on the day he had made an indicted speech. In considering whether or not the purpose of a meeting was to support ISIS it was relevant to prove an appellant’s knowledge of past meetings, past speakers, past speeches and the composition of the audience, as well as their views, where known.[15]Alamgir had not given evidence but in interview had denied supporting ISIS and claimed he would never promote ISIS. Bashir did not answer questions in interview or give evidence, but his defence statement denied that his speech was to invite support for ISIS. As already stated, Khan denied wishing to support ISIS in his indicted speech and claimed to have had a change of heart by 2015. Accordingly, Mr Larkin argued that in each case the appellant’s actual beliefs were a live issue and that the material adduced was relevant to that issue.[16]We consider that the Crown’s response is essentially correct. Key elements of the case were whether words used encouraged support for ISIS, and whether an appellant knew that that was the purpose of his address to the meeting. Since those matters were in issue it was, in our judgment, not realistic for the jury to be confined to a consideration of the speeches themselves in considering those issues. Other materials were relevant so that the jury could consider an appellant’s actual views and his willingness to express violent Jihadi views to others. The earlier occasions were also relevant to a consideration of the type of audience being addressed and the confidence of the speakers that they could speak freely and that the terms which they used would be understood. The mindset material was relevant to prove what an appellant was referring to in the indictment speeches, so that it was relevant to know his views and use of language on other occasions.[17]One example of this related to the establishment of a Caliphate. It was common ground that it was not an offence to want the establishment of an Islamic State or a Caliphate. An important issue was whether or not the appellants were referring to this in their speeches or to the ISIS Caliphate which had been declared on 29 June 2014 by al-Baghdadi, the leader of ISIS, in relation to the territory which had violently been seized by ISIS. Very shortly after that event the appellant Khan had made Bayah (an oath of allegiance) to al-Baghdadi in July 2014. This is an example of how the mindset material was relevant and probative in relation to an issue in the case.[18]Another example relates to evidence of a declaration which Khan said he had made in December 2014 distancing himself from ISIS. The mindset materials included evidence that subsequently he had made remarks supportive of the Charlie Hebdo killings in Paris and the execution of a captured Jordanian pilot. He had also been concerned with leaflets urging others to go fight in the Jihad in Syria and had continued to attend meetings of the Luton group. Again, we consider that this mindset material was plainly relevant and probative on an important issue.[19]The argument made by the appellants was the subject of consideration by this court in R v Choudary and Rahman [2018] 1 Cr App Rep 21. Very similar points were considered in that judgment at paragraphs 47-51. Counsel for Choudary had, after reflection, not pursued the argument and the court expressly approved his concession. Counsel for Rahman maintained the submission in very similar terms to the arguments now made and the court rejected them, stating that the evidence was relevant and admissible and that it did not consider the contrary to be arguable. Evidence showing support for ISIS before it was proscribed, and thus at a time when inviting support for ISIS was lawful, was relevant to show the applicants’ view of the organisation and was capable of assisting the jury in deciding what the applicants were doing after proscription. It was capable of showing that the applicants were overtly inviting support for ISIS before proscription, and that they continued to do so in more cautious terms subsequently. We consider that the court’s approach in that case can be equally well reflected in the present one. We do not think that the fact that Choudary was concerned with an offence contrary to s.12(1) makes any material difference. Accordingly, we are satisfied that the mindset evidence was admissible.[20]That leaves the question of whether, nonetheless, the judge should have excluded the evidence as being improperly prejudicial rather than properly probative. The judge specifically considered this and ruled that there was no unfairness in admitting the evidence, since the defence statements made the appellants’ positions clear and they had the option of giving further explanation through evidence.[21]In addition to the general arguments as to prejudice summarised at paragraph 13 above, Mr Hynes argued that the mention of names of a number of other individuals associated with or supportive of terrorism would have had unfairly prejudicial effect. We do not consider this to be the case. Those names arose through their association with the Luton group and through the mindset material. Those names emerged because relevant references to those people or their actions had been made by the defendants so that they properly formed part of the material to be considered by the jury as part of that background material.[22]Khan, of course, took the opportunity to give evidence and deal with the materials. Counsel for Alamgir and Bashir were able to address the jury in due course about the view to be taken of those materials. Moreover, examination of the summing up shows that the judge took great pains to ensure that he gave directions which focussed the jury’s minds on what the Crown had to prove and which gave proper context to the mindset material. In particular, the judge was very careful to emphasise the ingredients of the offences and to focus on a defendant’s purpose at the time of making a speech. Written directions provided to the jury after agreement with all counsel stressed that none of the mindset evidence was the subject of any allegation against a defendant. It went on to identify the purpose of the mindset evidence as assisting in determining what a defendant understood of the purpose of the indicted meetings and in determining what a defendant meant to say. That was balanced by a reminder of the defence argument that what had been said and done in the past did not necessarily shed light on what was being said and done during Ramadan 2015, there being evidence that attitudes and minds had changed in a relatively short timeframe.[23]Again, in relation to materials such as pamphlets or leaflets given to or seen by the undercover officer, the judge stressed that there was no suggestion that any defendant in possession of that material was committing a criminal offence, and explained Crown and defence submissions in a similar way to that identified above. After the main directions the judge reminded the jury on three occasions of those directions as the summing up progressed and left it entirely for the jury to consider whether any of the material assisted them in the way suggested by the Crown.[24]Thus, in our view, the disputed evidence was put before the jury in an accurate and balanced way. Firstly, it was made plain that there was no criminal allegation in relation to it; secondly, its relevance in the limited way advanced by the Crown was properly explained; thirdly, the defence’s rival contentions were properly set out. All of this was in the context of the summing up which made crystal clear that the focus of the charges was on the content of the speeches made on the days in question, considered carefully in the light of the ingredients of the offence alleged. Emphasis was laid on considering the whole of the speech in each case.[25]It seems to us, therefore, that the way in which the matter was dealt with by the judge correctly focussed on the potential use to which the evidence could be put and avoided the possibility of improper or prejudicial use being made of it. Quite apart from our analysis of the summing up, we note that the jury could not agree a verdict as against Alamgir in relation to one of the counts against him, thereby strongly suggesting that the jury had approached the matter properly and that the defence concerns as to prejudice did not materialise.[26]One sub-issue was the judge’s handling of evidence of past conduct by four non-defendants closely associated with the Luton group, each of whom had featured in the evidence. They had been invited speakers at meetings. It seems to us that their past conduct was relevant in showing that they and their views were well-known and that they could be expected to express support for a proscribed organisation. Their association with these appellants was sufficiently close for this to be relevant evidence, potentially showing that it was no coincidence that that they had been invited to meetings. Additionally, Khan has complained that the judge in this context failed to explain that his case was that he had distanced himself from violent Jihadist views by the time of the speeches. We see no force in this complaint since, when the judge reminded the jury of Khan’s evidence, he did so very fully, including his evidence on this topic.[27]Mr Hynes also argued that regard should be had to the fact that in Mr Khan’s case he admitted close to the outset of his evidence that he had held extreme and offensive views. In our judgment, this did not render the admissibility of the mindset material moot. Firstly, Khan was continuing to deny his guilt and the mindset material was relevant to the issues on the count he faced. Secondly, he was still maintaining that he had a change of heart in late 2014, well before the time the alleged offences were committed. In any event, the material was already before the court and was relevant in the case of other defendants. Further, Khan’s admission of views he had held and in some instances continued to hold did not affect the admissibility and relevance of this evidence on the counts he faced.[28]Insofar as reliance was placed on the quantity of mindset material placed before the jury, we do not think it was disproportionate or prejudicial for that reason. The Crown had been selective in what it had put forward, and materials had been cut down with a view to manageable presentation. Having reviewed the quantity of materials, we are satisfied there is nothing in that point.[29]For these reasons, we are satisfied that there is no substance in the common ground of appeal advanced and we reject it.[30]We now turn to the two grounds which have been renewed by Khan.[31]The first of the renewed applications asserts that his convictions are unsafe because the Learned Judge failed adequately, or at all, to direct the jury in relation to the applicant’s contact with the Security Services. It is said that the challenge in cross-examination to the applicant’s credibility enabled the prosecution “to benefit impermissibly”, particularly, given that no disclosure on this point had been made.[32]It is standard procedure for obviously good reason, that in cases when a defendant claims that there has been contact, during a period relevant to alleged offending, between him and members of the Security Services the Prosecution will neither confirm nor deny such an assertion. The applicant was asked questions in cross-examination on the topic and an application was made under section 8 of the Criminal Procedure and Investigations Act 1996. Nothing was disclosed as a result.[33]When directing the jury, the learned judge said, at 56B, “The direction I must give you is that you must accept Mr Khan’s account of his meetings with the security services as being accurate. As I have said, that evidence given by Mr Khan was and remains unchallenged evidence. It is evidence in this case, and you will consider it alongside all the other evidence you have heard when you come to consider whether the prosecution has proved its case against him”.[34]In the summing up the evidence given in chief by the applicant about the meetings said to have taken place with “Joe” and “Adam” was properly summarised. In dealing with cross-examination, the Learned Judge introduced the subject by saying at 125H-126B, “Mr Larkin said that he was going to work on the basis that everything that the defendant said about his meetings with the security services was correct and that he had told them what he had told us, and Mr Larkin indicated that he wanted to explore that with him in cross-examination, the point being whether what he had told them, MI5, about his mindset was true.” The applicant was cross-examined on suggested inconsistencies between what he said he had said to the Security Services and what he was saying publicly at the time. We see nothing impermissible in cross-examination on this basis.[35]This court dealt with the way in which a judge should sum up in this situation in R v AA & MD [2016] EWCA Crim 7. Guidance is given in paragraph 22, “What precisely is required in the summing up will depend on the way in which the evidence emerges and will ultimately be a matter for the judge who has well in mind the need to ensure fairness to the defendants. It is likely that a clear direction will be required to the effect that where a matter is neither confirmed nor denied by prosecution witnesses and (for example) a defendant gives evidence that it did/did not occur, the jury should accept the evidence of the defendant.”[36]The disclosure issues were considered in the s.8 application made directly on this point. The jury was told that the prosecution accepted that the applicant’s account was correct. We can see no arguable ground to criticise the way in which the jury was directed on this evidence. The jury was told, unequivocally, that the applicant’s account was unchallenged. The issue in cross-examination was the issue of his credit; how did the account of what he said he said to the officers accord with the evidence of other things said by him at the same time or later? The acceptance of the accuracy of his account of his meetings with the Security Services directed the jury to the core issue of whether what he had told them truly represented his state of mind and how they should approach the point. There is no demonstrable unfairness in the directions.[37]In the second renewed ground the applicant seeks to argue that, “the learned trial judge failed or failed adequately to safeguard the applicant’s Article 9 and 10 rights, by reviewing the evidence and, insofar as there remained a case compatible with those rights sufficient to be left to the jury, directing them to have appropriate regard to those rights before returning guilty verdicts.”[38]ARTICLE 9 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. ARTICLE 10 Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[39]The rights identified in Articles 9 and 10 are qualified by Articles 9(2) and 10(2). Article 9(2) deals with issues of public safety and the protection of public order. Article 10(2) additionally covers issues of national security. This court has clearly stated the position and ruled on the interrelationship between section 12 of the Terrorism Act 2000 and Article 10 in R v Choudary and Rahman (supra). In R v Humza Ali [2018] EWCA Crim 547 similar consideration was given to Article 10 in the context of section 2 of the Terrorism Act 2006.[40]In R v Choudary and Rahman the court observed:
“28. The flaw in the defendants’ argument is illustrated by what the judge went on to say. This was that, if he was to follow the defendants’ line of reasoning on this issue, counsel were unable to assist with how precisely he might resolve the question in the defendants’ favour in circumstances where there was evidence from which a jury could properly find that a defendant went beyond mere expressions of belief and opinions, and invited support for a criminal organisation which Parliament had proscribed because it had felt it necessary to do so in order to protect the public. He found it difficult to envisage any circumstances save those that were de minimis where a prosecution in such circumstances would be disproportionate. We would add that counsel had precisely the same difficulty in assisting us on this point as they had before the judge.”
[41]The learned Judge heard argument on this point and outlined his proposed directions as part of his ruling. This ruling was provided to the parties in advance of the summing up. There is, as he directed the jury, a line between the permissible expression of opinion and/or religious belief and the impermissible encouragement of a proscribed organisation. It was a matter for the jury, on the evidence and submissions, to reach a view as to whether the prosecution had proved that an individual defendant had crossed that line. He dealt with the point in clear and correct terms in his summing up.[42]As stated above, the judge drew a distinction between the criminal activity of encouraging support for a proscribed organisation and holding or expressing opinions or beliefs. He laid emphasis on the entitlement of everyone to hold and express opinions, even if others find them unpalatable or offensive. He contrasted this clearly with activity encouraging support for a proscribed organisation concerned in terrorism. In our view, the judge’s lengthy directions on this issue were more than sufficient to safeguard Article 9 and 10 rights. It is already well-established that s.12 itself does not contravene those rights. The assessment of which side of the line a speech falls is a question of fact for the jury to resolve, based on the particular evidence before it. We are unpersuaded that there is any force at all in this ground.[43]Accordingly, Khan’s renewed applications fail. In the event, all appeals against conviction are dismissed.