Ahmed & Anor v R

A criminal prosecution should be stayed for abuse of process only where alleged wrongdoing by the executive has a sufficient connection with the trial, so that continuing it would impair the integrity of the judicial process. Torture is absolutely prohibited, but a person does not thereby acquire immunity from prosecution for an antecedent offence. The critical distinction is between use of torture-derived material by public authorities to protect safety and its use by a court to make a case against an accused.

Membership under section 11 of the Terrorism Act 2000 ordinarily means voluntary and knowing association with others to further a proscribed organisation’s aims. The required jury direction depends on the live issues. Expert evidence from an established academic field may draw on varied source material; its reliability is generally for the jury.

Rangzieb Ahmed and Habib Ahmed appealed against convictions for terrorism offences following a trial before Saunders J at Manchester Crown Court. The prosecution case was that both were active in Al Qaeda. It relied particularly on covert recordings of their meeting in Dubai, diaries containing covertly written contact information, and subsequent recorded conversations.

Rangzieb alleged that Pakistani authorities tortured him after his later arrest in Pakistan and that United Kingdom authorities were complicit. He sought a stay for abuse of process. Both appellants also challenged the admission of Professor Clarke’s expert evidence, the directions on membership under section 11 of the Terrorism Act 2000, and territoriality. Habib additionally challenged the direction on the relevance of findings concerning Rangzieb. He renewed his sentence application.

1. Convictions. The appeals against conviction were dismissed. The trial judge correctly refused to stay Rangzieb’s prosecution. The abuse jurisdiction protects the integrity of the court’s process; it is not a means of disciplining executive agencies. Under R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42, serious executive misconduct may justify a stay where it manipulates the process by which the accused is tried. The necessary connection was absent here.

2. The court accepted that torture is prohibited by a peremptory norm of international law. Following A v Home Secretary (No 2) [2005] UKHL 71, the executive may act on foreign intelligence to protect public safety, even where the material may have been obtained by torture, but a court may not use such material to make a case against an individual. No torture-derived evidence was adduced and the judge found that no questioning in Pakistan informed the investigation or trial. Alleged wrongdoing therefore had no impact on the trial.

3. The wider asserted rule that intelligence-sharing with a State which may torture itself establishes complicity was not established law. Mere receipt of information, without assistance, encouragement or procurement of torture, does not amount to secondary participation under English law.

4. Professor Clarke’s evidence was admissible. Terrorism studies were an established academic field, he was qualified, and his methods and sources were legitimate. Expert evidence may establish historical facts and may draw on material that is not independently proved as primary evidence. The jury had been properly directed to assess his reliability critically, and his evidence was neither central nor fundamental to the convictions.

5. For section 11, membership commonly involves voluntary and knowing association with others to advance a proscribed organisation’s aims. The words are ordinarily non-technical. On the actual issues, the judge was entitled to direct the jury to give them their ordinary meaning: the dispute was whether the appellants belonged to Al Qaeda, rather than the conceptual content of belonging.

6. The offence under section 11 was territorially limited before section 17 of the Terrorism Act 2006 took effect on 13 April 2006. The omission of a territoriality direction did not render either conviction unsafe because the evidence, if accepted, necessarily established membership while each appellant was in the United Kingdom.

7. The jury were correctly told to consider each defendant separately while recognising that their findings about the relationship, instructions and intentions of one could be relevant, but not decisive, in assessing the other.

8. Sentence. Habib’s sentence appeal succeeded only to a limited extent. The court varied the consecutive sentence on count 10 to twelve months less 28 days, to reflect his pre-charge police custody. The remaining sentencing challenge failed.

• Court of Appeal (Criminal Division): Dismissed both appeals against conviction. Allowed Habib Ahmed’s sentence appeal only to deduct 28 additional days of pre-charge custody from the consecutive twelve-month sentence on count 10.
• Manchester Crown Court: Before Saunders J, both defendants were convicted of terrorism offences. Habib was sentenced to a total of ten years’ imprisonment.