Judge can ensure that jury reaches fair verdict after trial

The Court of Appeal, Criminal Division, so held in a reserved judgment dismissing Abu Hamza’s appeal against his conviction at Woolwich Crown Court (Mr Justice Hughes and a jury) on February 7, 2006, on six counts of soliciting to murder, contrary to section 4 of the Offences against the Person Act 1861, three counts of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred, one count of possessing threatening, abusive or insulting recordings of sound with intent to stir up racial hatred and one count of possessing a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism. The defendant was imprisoned for seven years.

Mr Edward Fitzgerald, QC and Mr Paul Hynes for the defendant; Mr David Perry, QC and Ms Adina Ezekiel for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the defendant was the imam of the Finsbury Park Mosque. Nine counts related to public speeches made by him between 1997 and 2000, one related to recordings of those speeches and one related to the Afghani Jihad Encyclopaedia.

The appeal included challenges to the conviction for the following reasons:

1 In so far as his speeches solicited those who heard them to commit murder, the solicitation was to do so in foreign countries. No evidence was given as to the nationality of any members of his audience. No offence would be committed under section 4 of the 1861 Act in respect of soliciting murder outside the jurisdiction unless the person solicited was a British national. Thus the prosecution failed to prove an essential ingredient of the offence.

2 By reason of events which occurred in the period during which prosecution was delayed and by reason of the adverse publicity to which the defendant was subjected, he could not receive a fair trial or there was a real risk that he would not receive a fair trial.

Section 4 of the 1861 Act

Mr Fitzgerald’s argument was as follows: at common law the inchoate offences of conspiracy and incitement could only be committed if the activities that were planned or incited would constitute a crime under English law and, as a matter of general principle, English criminal jurisdiction only extended to acts committed within the English jurisdiction.

By way of exception, English common law recognised as a crime unlawful killing that took place outside the jurisdiction, but only where the act was committed by a British subject. That was made clear in section 9 of the 1861 Act, which was no more than declaratory of the common law, for its provisions were expressly restricted to an offence committed by any subject of her Majesty.

Section 4 was also no more than declaratory of the common law. Thus, although it did not expressly so state, section 4 made it only a misdemeanour to solicit, encourage or endeavour to persuade any person to commit murder if the person in question was a subject of her Majesty.

In rejecting that submission, the judge concluded, contrary to the view expressed in Board of Trade v Owen ((1957) AC 602), that section 4 created an exception to the general common law principle.

Did section 4 create inchoate offences in relation to murder that had proved to be an exception to what was now recognised to be the general position at common law, or were those inchoate offences implicitly restricted to the committing or planning of murders by British subjects? Their Lordships had concluded that the former was the true position.

The motivation for the enactment of section 4 appeared to have been the activities of aliens in England in support of murders, or attempts to murder, committed by aliens outside the jurisdiction. If that was the explanation, it would have made no sense to have restricted the offence to situations where the murderers were to be British subjects.

In contrast to other sections, section 4 was enacting the ingredients of substantive offences, not laying down rules of jurisdiction. There was nothing in the wording that suggested that the conspirators, or the person incited, should be British subjects. Nor was the common law so clear that that was to be implied. On the contrary, that area of the law was in confusion.

There was no principle of international comity that required the legislature to restrict the inchoate offences, committed within the jurisdiction, to those relating to a murder to be carried out abroad by a British rather than a foreign subject. On the contrary, comity would weigh in favour of drawing no such distinction.

Delay in prosecuting

Mr Fitzgerald submitted that between 2000 and the commencement of the trial, events occurred which were bound, or at least likely, to prejudice the jury unfairly against the defendant.

Those facts led Mr Fitzgerald to advance a novel proposition of law. He accepted that the normal test on whether a trial should be stayed because of the prejudicial effects of media publicity was to ask whether on balance of probability a fair trial would be impossible.

He submitted, however, that where the authorities had failed to bring a timely prosecution and the delay had led to a risk of prejudice to the defendant by reason of subsequent events and publicity, it was unfair and oppressive for the trial to go ahead.

That amounted to a contention that where the publicity had resulted from unjustified delay in bringing the prosecution the court should not start from a presumption that the jury, if properly directed, would be able to disregard it but should stay the process if it considered that there was a real risk that the jury might be prejudiced by it.

Mr Fitzgerald had relied on R v Coutts (The Times July 24, 2006; (2006) 1 WLR 2154), a case about alternative verdicts.

Coutts recognised that there was danger in presenting to the jury an inadequate direction as to the relevant law which, if followed, might drive them to returning a verdict that, with good reason, they considered to be at odds with the requirements of justice.

Coutts also recognised that it need not be assumed that juries were unaffected by matters of possible prejudice when making their decisions and that a jury room might not be a place of undeviating intellectual and logical rigour.

Mr Fitzgerald invited the court to adopt a similar approach to the risk that a jury might be affected by prejudice resulting from events that would not have occurred but for unjustified delay in bringing a prosecution.

In their Lordships’ judgment, there was no justification for applying a different test to the effect of prejudicial publicity depending on whether or not that publicity would not have occurred but for the delay.

In general, the courts had not been prepared to accede to submissions that publicity before a trial had made a fair trial impossible. Rather they had held that directions from the judge coupled with the effect of the trial process itself would result in the jury disregarding such publicity.

There was a degree of tension between the approach of the House of Lords in Coutts and Lord Hope of Craighead’s observations in Montgomery v HM Advocate (The Times December 6, 2000; (2003) 1 AC 641, 673-674) in respect of the trust that could properly be placed on the jury’s ability to perform their duty to reach a decision in accordance with the evidence and the directions of the judge.

Their Lordships suggested that the answer to that tension was as follows:

The risk that members of a jury might be affected by prejudice was one that could not wholly be eliminated. Any member might bring personal prejudices to the jury room and equally there would be a risk that a jury might disregard the directions of the judge when they considered that they were contrary to what justice required.

Our legal principles were designed to reduce such risks to the minimum, but they could not obviate them altogether if those reasonably suspected of criminal conduct were to be brought to trial.

The requirement that a viable alternative verdict be left to the jury was beneficial in reducing the risk that the jury might not decide the case in accordance with the directions of the judge.

Prejudicial publicity rendered more difficult the task of the court, that was of the judge and jury together, in trying the case fairly. The laws of contempt of court were designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial.

The fact, however, that adverse publicity might have risked prejudicing a fair trial was no reason for not proceeding with the trial if the judge concluded that, with his assistance, it would be possible to have a fair trial.

In considering that question it was right for the judge to have regard to his own experience and that of his fellow judges as to the manner in which juries normally performed their duties.

The judge was satisfied that with proper direction a jury would be able to bring impartial judgment to the case and to decide whether, despite being labelled by some as a public enemy, the defendant really did commit the offences with which he was charged.

The judge’s assessment was correct. The circumstances did not require him to stay the prosecution on the ground that there could not be a fair trial. There was no reason to believe that the jury were not able to consider and resolve the relevant issues objectively and impartially.

Solicitors: Arani Solicitors Ltd, Southall; Crown Prosecution Service, Headquarters.