Ahmed Ali & Ors, R. v

A plea of autrefois convict or autrefois acquit bars a further prosecution only for the same offence in fact and law. Separate agreements may constitute separate conspiracies even where each contemplates the same substantive offence. A general agreement to murder and a distinct agreement to murder by detonating devices on aircraft were therefore separately indictable.

A further retrial depends on the overall interests of justice, not a rigid preliminary test. Serious adverse publicity does not prevent a fair trial if a properly directed jury can determine the case solely on admissible evidence. A prior acquittal does not prove factual innocence for every later purpose, although the later jury must be told that the defendant is not guilty in law of the earlier charge.

Eight appellants challenged convictions arising from a terrorist plot involving improvised explosive devices and transatlantic aircraft. The proceedings followed three lengthy trials at the Crown Court at Woolwich before Calvert-Smith J, Henriques J and Holroyde J.

Ali, Sarwar and Tanvir Hussain were convicted first of a general conspiracy to murder and later of a conspiracy to murder by detonating devices on transatlantic aircraft. Savant, Arafat Khan and Zaman were acquitted of the latter allegation but, after two jury disagreements on the general allegation, were convicted following a second retrial. Other appellants challenged conviction or sentence.

The central questions were whether the counts alleged the same conspiracy, whether retrials were unfair or abusive because of publicity and earlier acquittals, and whether the third-trial jury required a direction after two jurors were discharged.

1. The conviction appeals were dismissed. The counts charged distinct conspiracies. Count 1A alleged an agreement to murder without a specified means. Count 1 alleged a separate agreement to murder by detonating improvised explosive devices on transatlantic passenger aircraft. The agreement, rather than merely the substantive offence contemplated, identifies a conspiracy. The pleas of autrefois convict and autrefois acquit therefore failed.

2. Different counts cannot be used merely to obtain jury findings on factual matters which do not create different offences. In the ordinary conspiracy case, the jury decides whether the defendant joined the charged agreement and the judge determines the defendant’s role for sentence. This exceptional case nevertheless permitted separate counts because the agreements alleged were different.

3. Henriques J correctly refused to stay the second trial. The verdict on count 1A had properly been taken, and the later trial on count 1 concerned a different conspiracy. The extensive publicity did not make a fair trial impossible. A fair-minded and informed observer would conclude that a properly directed jury could focus on the evidence, notwithstanding the risk of internet material.

4. Holroyde J correctly permitted the second retrial. The governing question was the overall interests of justice. The gravity of the conspiracy, the strength of the evidence, the public interest, the lengthy prior proceedings, harsh remand conditions, publicity, earlier acquittal and absence of fresh evidence all required evaluation. On balance, the interests of justice required the retrial.

5. The prior acquittal on the aircraft allegation did not provide affirmative proof of innocence on the general conspiracy allegation. Relevant evidence remained admissible provided the Crown did not allege that the appellants had agreed to detonate devices on aircraft and the jury received an adequate direction. The direction given achieved that result.

6. Following R v Carter [2010] EWCA Crim 201, no special direction was required about views expressed by jurors discharged during retirement. Those views could properly remain part of the remaining jurors’ deliberative process to the extent that they adopted them as their own.

7. The challenges to sentence disclosed no manifest excess or unjustified disparity. Leave to appeal against sentence was refused except in Zaman’s case, where leave was granted but the appeal was dismissed.

• Court of Appeal (Criminal Division): The court dismissed the appeals against conviction and sentence in [2011] EWCA Crim 1260.
• Crown Court at Woolwich: Calvert-Smith J conducted the first trial. Henriques J conducted the second trial and imposed sentences on Ali, Sarwar, Tanvir Hussain and Islam. Holroyde J permitted and conducted the second retrial of Savant, Arafat Khan and Zaman, who were convicted of conspiracy to murder.