Khyam & Ors,R v

A stay for abuse of process requires conduct by the executive which is sufficiently unconscionable and abusive to undermine the rule of law. The court must balance that concern against the public interest in trying serious crime. Foreign ill-treatment does not itself taint later, properly conducted domestic interviews where they are free, independent and unconnected with it.

Disclosure duties require reasonable inquiry, but an adequate prosecution assurance ordinarily permits the court to proceed. Intercept material may be disclosed only in genuinely exceptional circumstances; a defendant’s unsupported assertion is insufficient. Defects in a jury direction justify intervention only where they cause injustice or affect the safety of the conviction.

The applicants were convicted after a 14-month jury trial at the Central Criminal Court of conspiracy to cause explosions likely to endanger life, contrary to the Explosive Substances Act 1883. Two applicants were also convicted of terrorist possession offences under the Terrorism Act 2000.

They sought leave to appeal against conviction on numerous grounds. These included alleged executive abuse and inadequate disclosure concerning Amin’s detention in Pakistan, the admissibility of his later United Kingdom interviews, intercept material, evidential rulings, the summing up and possible jury irregularity. Four applicants also challenged sentence. The central issues were whether any alleged procedural unfairness rendered the convictions unsafe, and whether the minimum terms were excessive.

Disposition

1. The court dismissed all applications for leave to appeal against conviction. It refused the sentence applications of Akbar and Mahmood. It granted Garcia and Amin leave to appeal against sentence, treated their applications as the appeals, and allowed them only by reducing their minimum terms.

2. The President’s recusal was not required. Applying the objective bias test, the inquiry made about the postponement of a high-profile trial was a legitimate request for case-progress information. It was not executive interference in the judicial process and created no real possibility of bias.

3. The Crown’s disclosure assurance was sufficient. The court found that public-interest-immunity proceedings had been conducted properly and that no material requiring disclosure had been omitted. In the ordinary case, further ex parte inquiry or a special advocate is unnecessary where the prosecution has discharged its disclosure duties.

4. Amin’s detention and ill-treatment in Pakistan did not justify a stay. A conviction may be quashed for executive misconduct that undermines the rule of law, even after a fair trial. But the trial judge was entitled to find that United Kingdom authorities neither procured nor were complicit in the relevant misconduct, and had not manipulated Amin’s return to the United Kingdom.

5. Amin’s United Kingdom admissions were admissible under the Police and Criminal Evidence Act 1984. The earlier ill-treatment had ended months before the interviews. The later interviews were properly conducted, voluntary, independent and untainted by it.

6. The court refused disclosure of intercept material under the Regulation of Investigatory Powers Act 2000. Exceptional circumstances must be highly unusual and material; unsupported claims about potentially exculpatory calls could not satisfy that threshold.

7. The remaining conviction grounds disclosed no unsafe conviction. The dream evidence was admissible as evidence of what Akbar said. Any defects in the directions on silence were immaterial. The trial judge correctly left Mahmood’s case to the jury, excluded speculative foreign-practice evidence, gave adequate warnings about the accomplice witness, and fairly summed up the evidence. There was no evidential basis for an inquiry into the jury.

8. Discretionary life sentences were justified by the applicants’ continuing dangerousness. Garcia’s minimum term was reduced to 17 years and six months. Amin’s was reduced to 16 years and nine months, making fair allowance for his Pakistan detention without altering the order under the Criminal Justice Act 2003.

The court also gave obiter guidance that close, continuous judicial case management under the Criminal Procedure Rules and the terrorist-case protocol promotes, rather than compromises, the due administration of justice.

• Court of Appeal (Criminal Division) Dismissed the applications for leave to appeal against conviction. Granted Garcia and Amin leave to appeal against sentence and reduced their minimum terms.
• Central Criminal Court On 30 April 2007, following a jury trial before Sir Michael Astill, convicted the applicants of conspiracy to cause explosions likely to endanger life and imposed discretionary life sentences.