Aziz & Ors v R.

A trial may continue after highly publicised terrorist events if the trial judge, applying the fair-minded and informed observer test, is satisfied that clear directions and the trial process will secure a fair trial. An appellate court will be slow to interfere with that discretionary assessment.

A witness anonymity order may be discharged only where a material change of circumstances makes that appropriate under the statutory scheme. Effective cross-examination, speculative further enquiries and untested possibilities do not establish unfairness. A life sentence for preparation of terrorist acts may be justified as a last resort where an extended sentence cannot adequately protect the public from an enduring and unpredictable danger.

Four applicants were convicted at the Central Criminal Court before Globe J of preparing terrorist acts, contrary to section 5(1)(a) of the Terrorism Act 2006. The prosecution case centred on a bag containing a partially constructed pipe bomb and other weapons found beneath the driver’s seat of Ali’s car. The defence alleged that undercover police officers had planted it.

All applicants sought leave to appeal against conviction. They challenged the refusal to discharge the jury after the Westminster Bridge terrorist incident, the refusal to lift anonymity orders protecting two undercover officers, the decision to discharge only one juror after an incident concerning a police witness, and the fairness of the summing up. Aziz also sought leave to appeal against his life sentence.

The central issue was whether any ruling or feature of the trial rendered the convictions arguably unsafe, and whether Aziz’s sentence was wrong in principle or manifestly excessive.

1. All applications for leave to appeal were refused. There was no arguable ground on which any conviction was unsafe, and Aziz’s life sentence was neither wrong in principle nor manifestly excessive.

2. The trial judge correctly applied the apparent-bias test in Re Medicaments (No2) [2002] 1WLR 779 and Porter v Magill [2002] 2AC 357. He was entitled to conclude that the Westminster Bridge incident and related publicity did not create a real possibility of jury bias which clear directions could not cure. The trial judge was best placed to assess the circumstances and atmosphere of the trial. Judicial experience supported the conclusion that properly directed jurors would decide the case on the evidence.

3. The refusal to discharge or vary the anonymity orders was unarguably correct. Under section 91 of the Coroners and Justice Act 2009, the issue was whether a material change since the orders justified variation. The extensive cross-examination of the undercover officers gave the jury ample material to assess credibility. Proposed further enquiries about past allegations, forensic comparison and possible purchases were speculative or did not depend on disclosure of the officers’ identities. The absence of additional DNA or fingerprint comparison was a proper matter for the jury’s assessment, but did not show that the investigation or anonymity ruling was deficient.

4. The judge dealt fairly with the juror incident. He was entitled to accept one juror’s assurance of impartiality, discharge the other juror, and conclude that no wider discharge or further enquiry was necessary.

5. The summing up, read as a whole, fairly placed the defence cases before the jury. The judge’s suggested questions about the undercover officer’s evidence were legitimate comments and did not amount to advocacy.

6. There was ample circumstantial evidence to support each conviction once the jury rejected the allegation of planting. As to Aziz, the judge had considered an extended sentence but was entitled, consistently with Kahar [2016] 2 Cr Appellant R (S) 32, to impose life imprisonment because the duration of the risk to public safety could not be predicted or adequately managed by such a sentence. The 15-year minimum term reflected Aziz’s lesser aggravating features and was not arguably excessive.

• Court of Appeal (Criminal Division): refused the renewed applications for leave to appeal against conviction and, for Aziz, sentence.
• Central Criminal Court: Globe J convicted all four applicants of preparing terrorist acts and imposed life sentences. Aziz received a 15-year minimum term; the other applicants received 20-year minimum terms.
• Single judge: Openshaw J refused leave to appeal on the papers; that refusal was endorsed by the full court.