Ali, R v

Charges may properly be tried together as a series of offences of a similar character where their wider factual and legal features disclose a sufficient nexus. Exact factual similarity is unnecessary.

Under Criminal Justice Act 2003, section 101(1)(d), evidence relating to one count may be admissible on another count if it has probative value on the true issues. Cross-admissibility is not confined to propensity evidence or to cases with significant factual similarity.

An extension of time for an interlocutory appeal from a preparatory ruling requires good cause. A short delay caused by an error, without more, does not meet that standard.

R v Khalid Ali concerned an application for an extension of time and renewed applications for leave to appeal from rulings made by the Recorder of London at a preparatory hearing.

The indictment alleged two offences concerning explosive substances in Afghanistan in 2012 and one offence of preparing terrorist acts in Westminster in 2017. The prosecution sought to rely on the evidence on each group of counts as bad character evidence on the other, and to try all counts together. The Recorder held that the evidence was cross-admissible, that the counts formed a series of offences of a similar character, and that separate trials were not in the interests of justice.

The defendant's notice of application was late. The Recorder refused an extension of time. The central issues were whether time should be extended and whether the Recorder's rulings on joinder, cross-admissibility and severance disclosed an arguable error of law.

1. All applications were refused. The court upheld the Recorder's refusal to extend time and held that there was no arguable ground of appeal against the rulings on joinder, cross-admissibility or severance.
2. The applicable time limit for an interlocutory appeal from a preparatory ruling was important. Timetables in terrorism cases require careful planning around custody time limits, preparation, any appeal and judicial availability. The defendant's misunderstanding about when time began to run did not amount to good cause, particularly when an extension could have been sought before expiry. The short delay and absence of disruption to the trial date did not alter that conclusion.
3. The Recorder was plainly entitled to find a sufficient nexus for joinder. Applying the approach in Kray [1970] 1 QB 125, Ludlow v The Metropolitan Police Commissioner [1970] 1 AC 29, and Williams (Malachi) [2017] 4 WLR 93, the court considered the wider factual and legal characteristics of the allegations. Each alleged voluntary preparation for murderous violence or endangerment of life in pursuit of the same ideological objective. Differences in time, place and weapon did not prevent the charges from being a series of offences of a similar character.
4. The evidence was properly cross-admissible under section 101(1)(d) of the Criminal Justice Act 2003. Following the reasoning reflected in Freeman and Crawford [2009] 1 WLR 2723 and McAllister [2009] 1 Cr App R 10, its relevance did not depend on a propensity case or on substantial factual similarity. Evidence of the defendant's alleged conduct and stated motives in 2017 could bear on whether he acted voluntarily and with the required intent in 2012, and the converse was also true.
5. There was no basis to conclude that the Recorder's discretionary refusal of severance was outside the proper range of decisions. He had considered the alleged prejudice and was entitled to rely on appropriate jury directions. Separate trials would have been contrary to the interests of justice.
6. The court also made no contrary reporting order. The restrictions in section 37 of the Criminal Procedure and Investigations Act 1996 therefore continued to apply, permitting only the particulars allowed by section 37(9) until the Crown Court trial concluded.

• Court of Appeal (Criminal Division). In [2018] EWCA Crim 1011, the court refused an extension of time and refused renewed leave to appeal.
• Crown Court. At a preparatory hearing, the Recorder of London ruled that the counts could be tried together, the evidence was cross-admissible, and severance was not appropriate. He later refused an extension of time to seek leave to appeal those rulings.