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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Botmeh, R v  EWCA Crim 2226 (1st November, 2001)
Cite as:  1 WLR 531,  EWCA Crim 2226
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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
Royal Courts of Justice
London, WC2A 2LL
B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE HOOPER
MR JUSTICE GOLDRING
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr M Mansfield QC & Mr B Emmerson QC (instructed by B M Birnberg & Co) appeared for Botmeh
Mr Julian Bevan QC, Mr W Boyce QC, Mr Rabinder Singh & Miss V Coward (instructed by CPS HQ London) appeared for the Crown
AS APPROVED BY THE COURT
Crown Copyright ©
THE VICE PRESIDENT:
On 11th December 1996 at the Central Criminal Court the appellants were each convicted of conspiracy, between January 1993 and May 1995, to cause explosions and, on 16th December, were sentenced by the trial judge Garland J to twenty years imprisonment and recommended for deportation. Two co-accused Mahmoud Abu-Wardeh and Nadia Zekra were acquitted and discharged.
Following refusal of their applications for leave to appeal against conviction and sentence by the single judge, on 10th May 1999 the Full Court, differently constituted, granted leave to appeal against conviction and referred the applications for leave to appeal against sentence to this court. Leave was refused on the grounds which were before the single judge but granted on two new grounds relating to disclosure by the prosecution. Before granting leave, the Full Court had conducted an ex parte public interest immunity hearing at which the prosecution but not the defence were represented. The documents considered by the Full Court on that occasion were not seen by the members of this court prior to the hearing of these appeals.
In summary, the facts were these. In July 1994, 2 car bombs exploded in London, the first, shortly after mid-day on 26th, outside the Israeli Embassy in Kensington Palace Gardens and the second, in the early hours of the following morning, outside Balfour House, Finchley which was occupied by a Jewish organisation. It was common ground that the explosions had been carefully planned. The issue for the jury was whether the appellants had participated in the conspiracy to make, place, and explode those bombs. Both admitted having had possession, from July 1994, of about 5 lbs of an explosive, TATP, which had been made up into two bombs. The appellant Alami admitted possessing 3 hand guns. The explosives and two of the handguns were found in the Nationwide lock-up rented by Alami under a false name. Both appellants denied any unlawful intent in relation to explosions in this country.
The prosecution case was that the appellants had been party to the construction of the bombs which exploded at the Embassy and at Balfour House. Alami was a chemical engineer who admitted possessing other explosive devices and relevant literature. Botmeh was alleged to have procured the two cars in which the bombs were delivered. The Crown’s case was that both were members of, or sympathisers with, the Popular Front for the Liberation of Palestine (PFLP) but, being dissatisfied with official policy, had become part of a breakaway English group. The Crown alleged what was found in the lock-up was left over from the two bombings and was intended to be used for further terrorist attacks. The accounts given by the appellants were, the Crown alleged, unworthy of belief and had been tailored around those parts of the prosecution case which they could not deny.
On 6th April 1994, three timers were bought for cash by someone masquerading as a legitimate businessman. Between 12th and 22nd April, Alami had received £6,000 and had opened a mailbox at a newsagents under the name “S Allen”. On 25th April, Botmeh had bought a distinctive BMW car at Wimbledon car auction, using the false name “Jaffa” and a false address. On 9th May three further timers were bought and in due course three of the six timers were recovered from the lock-up in May 1995. On 26th May 1994, an order was placed with chemical wholesalers in Birmingham for a substantial quantity of acetone, hydrogen peroxide, nitric acid and sodium chlorate. The first 3 items were capable of producing TATP according to a formula published in a book which Alami had. Sodium chlorate could be mixed with sugar or charcoal to produce high explosive. The chemicals were collected on 2nd June, by a person signing the name George Davis, giving a Wolverhampton address, in a Ford Transit van which had been hired the previous day by the co-accused Abu-Wardeh. When the lock-up was searched in May 1995 there was found, in addition to the 2 TATP bombs, a quantity of sodium chlorate and a small quantity of nitric acid in a carton bearing the label of the Birmingham wholesalers. £4,000 was withdrawn from Alami’s bank account during May 1994.
On 13th June “George Davis”, giving the same Wolverhampton address, bought a Triumph Acclaim motor car at a Birmingham car auction. The description of the buyer could have fitted Botmeh. Later, with false plates, the Triumph delivered the Balfour House bomb. On 15th June “George Davis” giving the same Wolverhampton, address bought an Audi at a car auction in Milton Keynes at which Botmeh was present in the BMW. It was common ground that the unchallenged description of the buyer did not fit “Reeda” (to whom we shall come) as described by the appellants. Equipped with false plates, the Audi was used to deliver the Israeli Embassy bomb. On 29th June Botmeh bought a Nissan car at Milton Keynes car auction giving a false name and address. On 2nd August he sold that car at an auction in Northampton using his true name. On 6th August he bought a Saab at an auction in Whitechapel using his real name and address. On 15th July an Audi car owned by the Alami family was seen in Kensington Palace Gardens. On 17th July Alami rented the lock-up under a false name and on 23rd July Botmeh visited the lock-up.
Forensic experts who examined the exploded bombs concluded that the one at the embassy had probably contained 50 lbs of high performance explosive and the one at Balfour House several lbs of high explosive. The explosive could not be identified positively: it could have been Semtex and its constituents, TNT or one which was nitro-glycerine based. TATP was unlikely because of its instability, which gave rise to danger when being transported, though TATP had apparently been safely transported to the lock-up and made into the bombs found there. On 26th July, after the embassy bombing but before that at Balfour House, a letter claiming responsibility was delivered to 2 Arab newspapers and to the London office of the PLO.
Prior to the bombings, both appellants had been involved, over a period of time, in projects involving radio controlled model aircraft and in experiments with improvised explosives. Botmeh kept a detailed log of his model aircraft activities and Alami’s log included extensive notes on explosives generally.
After Alami’s arrest in January 1995, police found, at a flat in Montrose Court to which she had access, a gun and ammunition together with some chemicals and notes made by her on explosives. During interviews, in January 1995, she claimed she had nothing to hide and, in relation to her movements on the days of the bombings, she first said she had spent most of the afternoon shopping in the West End and the evening at home watching television. The following day, having been shown the porters’ log from the block of flats where she lived, which recorded her going out about 9 pm and returning about 12.45 am, she accepted that her earlier account was inaccurate, but said she could not remember why she had gone out. In a third interview the next day, she said she had gone to a restaurant to celebrate a friend’s birthday. Botmeh, in interview, initially disclosed, in relation to motor cars, only his ownership of the Saab and said that he had had, at most, only one other car in the previous year. The following day, he disclosed his dealings with the BMW and gave an inaccurate account of his involvement with the Nissan. He denied using false names or addresses in his car dealings.
In evidence before the jury, both appellants denied any involvement in the bombings but admitted having carried out experiments with TATP and the model aircraft. The sole purpose, they said, was to develop and test techniques which could be used not in this country, but in the Occupied Territories. Both condemned the bombings, regarding them as being short-sighted.
Alami said she had received most of her higher education as a chemical engineer in London. She was politically active as a member of the PFLP and had an interest in water supply, which was an important issue in many of the conflicts in Lebanon and Palestine. In 1988 or 1989, while at Imperial College, she had started to collect information regarding improvised explosives which might be created using materials available within the Occupied Territories, though her extensive notes referred to materials such as nitro-cellulose and nitro-glycerine which would not be available there. She had obtained the book containing formulas in London in 1991 or 1992 and had unsuccessfully experimented with fertiliser and weedkiller in remote places accompanied by Botmeh. She had accompanied him on some of his model aeroplane trips. Her last field trial of home made explosives had been in March 1994. The explosives found in the lock-up had been given to her on 13th July 1994 by “Reeda” a Palestinian she had first met in 1992. She had met him at a function in March 1994 and told him of her experiments. She met him on 13th July after he had telephoned her. In a cafe in Baker Street he handed her two boxes from which she and Botmeh made up the two explosive devices: these were experimental and she had no intention of exporting explosives to the Occupied Territories. She did not mention Reeda in any of her interviews. The guns recovered from Montrose Court and the lock-up had been handed to her in 1992 for safekeeping by a friend who was active in the Palestinian movement. On 26th July she had been shopping with Reem Abdelhadi until about 10.30 pm. She could not recall if, afterwards, she had gone to meet her sister or someone else in Soho. Her differing accounts in interview were due to genuine confusion. She had said she had nothing to hide because she did not want to be drawn into a discussion of the project in relation to the Occupied Territories. In cross-examination she denied that Reeda was fictitious or a pseudonym for someone else. No details were given of any telephone numbers, addresses, jobs or other information which might help to confirm Reeda’s existence. The Crown, pursuant to its duty to review disclosure during the trial, tried, unsuccessfully, to find evidence confirming Reeda’s existence. The first time his name was mentioned by either appellant was during Botmeh’s evidence in chief.
Several witnesses gave evidence of Alami’s good character and Reem Abdelhadi confirmed the shopping trip on 26th July. She had given large sums of money to Alami and Botmeh. Her fingerprints were on the keys to the flat at Montrose Court, the keys to the lock-up and the keys to the box containing the handguns, but she denied being involved in any conspiracy.
Botmeh was educated in England, graduating from Leicester University in engineering. He had been politically active since 1987 and had met Reem Abdelhadi and Alami in 1988 or 1989. In 1992 he started to consider ways of helping Palestinians in the Occupied Territories and thought his interest in model aircraft could provide a means of flying in materials, or for surveillance or as a surprise weapon. Alami had joined in this line of enquiry and they had attended model airshows and exhibitions together. He had a long standing interest in cars and car auctions. His use of false identities was simply to avoid parking fines. He first met Reeda in November 1992 at a lecture. He did not have any address for him, but had a telephone number with a Birmingham prefix. He had gone with him to a car auction at Northampton and bought a Renault 25. He had been with Reeda at the Milton Keynes auction on 15th June when Reeda had bought the Audi. He had never seen him again and had been unable to trace him. He had bought the BMW using a false name for a friend who did not want the car and he had used it. He had not been in Birmingham on 13th June when the Triumph Acclaim had been bought. He had bought the Nissan under a false name because it was cheaper to run than the BMW. He had failed to mention the BMW in his first interview because he had bought and sold so many cars and the interview had been long and late. In cross-examination he accepted that, by early 1994, the model aircraft project had all but come to an end. He denied deliberately concealing his possession of the BMW in interview, but said he would not have told the police about Reeda because it would have exposed the model plane project and the do-it-yourself explosives.
The two grounds of appeal initially advanced before this court were:
“(1) The conviction is unsafe in the light of the evidence adduced at trial in combination with such material, evidence or information as has become available to the Crown since the applicants’ convictions, and which is currently the subject of an application by the Crown to the Court of Appeal for public interest immunity.
(2) The conviction is further rendered unsafe by the existence of material evidence or information in the possession of the Crown which has not been disclosed to the defence and which was not the subject of public interest immunity application made to the trial judge”.
At the adjourned hearing of the appeal we gave leave to argue a third ground alleging that the convictions are unsafe in the light of further evidence “which has come to light since the trial”.
The first question to be considered on the hearing of this appeal was whether or not it was appropriate for this court to conduct an ex parte hearing to determine the prosecution’s claim (pursuant to the Home Secretary’s public interest immunity certificate signed on 8th May 1998) for public interest immunity in relation to material not placed before the trial judge and whether all or any of that material should be disclosed to those representing the appellants.
For both appellants, Mr Emmerson QC submitted that such a hearing should not take place as it would be incompatible with the fair trial provisions of Article 6 of the European Convention on Human rights. He took us in particular to Fitt v UK and Jasper v UK (judgments of ECtHR on 16th February 2000), Rowe & Davis v UK  30 EHRR1 and section 2 of the Human Rights Act 1998 which requires this court to “take into account any...judgment of the European Court of Human Rights...or...opinion of the Commission”. He submitted, and we accept, that it will rarely be appropriate for the English courts to adopt a standard of protection which is lower than that set in the Strasbourg case-law. We also accept that, in accordance with s6(1) of the Act, “it is unlawful for a public authority to act in a way which is incompatible with a Convention right” and that this court is a public authority within that section (see s6(3)(a)). Further, we accept, for present purposes, that there is no primary legislation or provision under it which would enable this court, under s6(2), to act incompatibly with a Convention right.
Mr Emmerson further submitted that, as the ex parte procedure established in R v Davis, Johnson & Rowe 97 Cr App R110 is a common law procedure and therefore outwith s6(2), in the light of Rowe & Davis v UK, it is a procedure which cannot be followed in this court but must be confined to proceedings at first instance. The Crown Court (Criminal Procedure and Investigations Act 1996) Disclosure Rules 1997, which provide a legislative basis for ex parte proceedings, apply only to the Crown Court and not to this court.
He submitted that Rowe & Davis v UK is indistinguishable from the present case and establishes that there is a breach of Article 6 where the trial judge has not carried out the necessary balancing exercise in relation to material not before him if that defect has not been remedied (as it was in Edwards v UK 15 EHRR 417) by a full inter partes consideration by the Court of Appeal of the previously undisclosed material.
Mr Emmerson stressed that in Fitt, at paragraph 49, the ECtHR emphasised the important safeguard of the trial judge’s monitoring duty during the trial. In Rowe & Davis v UK at paragraph 79, the Commission concluded that review of the material by the Court of Appeal could not cure the absence of examination by the trial judge and the majority of the Grand Chamber of the Court, at paragraph 65, took the same view. In IJL, GMR and AKP v UK, judgment 19th September 2000, the ECtHR, in rejecting a complaint that non-disclosure violated Article 6, emphasised, at paragraph 118, that all the material had there been disclosed to the defendants before the start of the Court of Appeal proceedings.
Mr Emmerson submitted that the Strasbourg test is whether the material has been the subject of adversarial argument on appeal and that it follows that the whole of the present proceedings would be incompatible with Article 6 if, following an ex parte hearing on appeal, this Court sanctioned the withholding of evidence not placed before the trial judge. At the adjourned hearing of the appeal he sought to distinguish Lambert  3 WLR 206 decided by the House of Lords after the adjournment of this appeal.. In that case, the majority of the House of Lords concluded that an appeal by a defendant is not a proceeding by or at the instigation of a public authority within s22(4) of the Human Rights Act 1998 and accordingly a trial before 2nd October 2000 cannot be impugned for an alleged breach of Article 6 (per Lord Slynn at paragraph 9, Lord Clyde at paragraphs 140 and 144 and Lord Hutton at paragraph 172). But, he submitted, and we accept, that that decision does not impinge on this court’s obligation to comply, itself, with Article 6. He submitted by reference to Delcourt v Belgium 1EHRR 355 that the trial and appeal proceedings are an entity so compliance must be assessed as a whole. He referred to Lord Steyn’s speech in Lambert at 216D to 217C. He further relied on Atlan v UK ECtHR unreported 12th June 2001 where ECtHR held that ex parte Court of Appeal proceedings making factual assumptions favourable to the appellant were inadequate to remedy unfairness at trial when the Crown had deliberately withheld information. He accepted that, by paragraph 41 of the judgment, it was held that it is not the role of the Strasbourg court to decide whether non-disclosure is necessary and it is generally for the national courts to assess evidence and that, by paragraphs 49 and 50, the ECtHR recognised the distinction between procedural fairness and safety of conviction. But, he submitted, this court’s assessment of safety is, as in Atlan, incapable of remedying the defect of non-disclosure at trial. He further relied on Togher  1 Cr App R 457 paragraphs 28-30, Forbes  2 WLR1 paragraph 24 and Brown v Stott  2WLR 817 at 825A in support of three propositions: first, the distinction between fairness under Article 6 and safety of conviction drawn in Davis Rowe & Johnson  1 Cr App R 115 at 131 paragraph 56 must now be read in the light of Lord Woolf’s comment (unanimously endorsed by the House of Lords in Forbes) that “the circumstances in which there will be room for a different result before this court and before the ECtHR because of unfairness based on the respective tests we employ will be rare indeed” (Togher paragraph 30); secondly, this court, in deciding whether there is a breach of Article 6, must look at all the circumstances of the case; and, thirdly, a conviction must be quashed once the threshold of incompatibility with Article 6 has been crossed.
Mr Rabinder Singh, for the Crown on this aspect of the appeal, submitted that the Strasbourg authorities make plain that assessment of evidence is for the national court (Rowe & Davis v UK paragraph 62 and Atlan paragraph 41), that judicial control is essential (Jasper paragraph 52), that the function of this court in assessing the safety of a conviction is different from that of the Strasbourg court in assessing, from the outside, the compatibility with the Convention of the entire criminal decision-making process here. The remedies at Strasbourg are different and more limited (see Condron v UK ECtHR judgment 2nd May 2000, particularly paragraph 65). Because the functions of the trial judge and Court of Appeal are different, so that a trial defect may not be curable on appeal, it does not follow that this court cannot sit ex parte when performing its own distinct function. He pointed out that the ECtHR in Rowe & Davis v UK and Atlan concluded that the finding of a violation of Article 6 constituted sufficient just satisfaction. He pointed out that this court might sit ex parte, first, to consider material seen by the trial judge so as to review his decision, secondly to consider and order disclosure of material not seen by the trial judge (as in Edwards v UK 15 EHRR 417) thirdly, to consider new material since trial, which the prosecution would have an obligation to show the court, or, fourthly, to consider (as in the present case) pre-trial material not shown to the trial judge. He submitted that to accede to Mr Emmerson’s submission that, in the last situation, this court must quash the conviction and order a re-trial because of a trial breach of Article 6, might lead to injustice to a defendant. In the light of Lambert, Mr Rabinder Singh submitted that it is not open to these appellants to rely, on appeal, on any alleged breaches of Article 6 at trial, because, by virtue of s 7(1) and (6) and s22(4) of the Human Rights Act 1998, as the trial took place before 2nd October 2000, it was not subject to the Convention and proceedings in the appeal are brought by the appellants, not a public authority. He accepted that this court must comply with Article 6. But, if the Delcourt v Belgium principle of assessing the proceedings as a whole applies it would have applied in Lambert (where it was cited). Delcourt does not advance the appellants’ case because of s22(4) of the Human Rights Act as construed by the majority in Lambert. It is therefore impossible for the appellants to seek to rely on alleged Convention rights before October 2000.
As to Atlan, Mr Rabinder Singh submitted an undisclosed informant was at the heart of the case and the Government did not contend before the ECtHR that there was no unfairness at the trial (paragraph 44). The issue was whether the Court of Appeal proceedings remedied that unfairness (paragraph 45). The ECtHR did not decide that ex parte Court of Appeal proceedings are unfair. Here the Court of Appeal had ordered such further disclosure as is appropriate. Mr Rabinder Singh relied on paragraphs 41, 49 and 50 in Atlan to which we have already referred. He also pointed out that Davis Rowe & Johnson is the only English authority concerned with PII and the Strasbourg judgment in that case did not automatically lead to a conclusion that the verdict was unsafe. He relied on Craven  2 Cr App R 181 paragraphs 55 to 58, in which Togher was considered, where this court held a conviction to be safe notwithstanding a defect at trial when fingerprint evidence had not been disclosed.
If the appellants are entitled to rely on this court complying with Article 6 (as is conceded) the different roles of this court and the ECtHR should and did guide our approach in determining the first question which we have identified. In our judgment, once it is accepted that the defence have no absolute right to disclosure of relevant evidence and that strictly necessary measures restricting the rights of the defence are permissible, provided they are counterbalanced by the procedures followed by the judicial authority, (Jasper paragraph 52 and Rowe & Davis v UK paragraph 61) there could have been no breach of Article 6 if this court examined material ex parte. Furthermore, as was expressly held in Rowe & Davis v UK (paragraph 62), and Atlan (paragraph 41) it is for the national court to assess evidence and decide whether non-disclosure is strictly necessary.
Although the ECtHR in Rowe & Davis v UK and Atlan held that this court’s review of the undisclosed evidence was insufficient in those cases to remedy the unfairness caused at the trial by the absence of any scrutiny of the withheld information by the trial judge, there is nothing in the court’s judgments to suggest that an ex parte examination of material by this court is, of itself, unfair. Indeed such a conclusion would be incompatible with the ECtHR’s recognition that the defence has no absolute right to disclosure of relevant evidence.
We appreciate that, in Rowe & Davis v UK paragraph 65, the ECtHR emphasised the importance of scrutiny by the trial judge who sees the witnesses and is “fully versed in all the evidence and issues in the case”. But we also note that the ECtHR was, in the same paragraph, influenced by the fact that the Court of Appeal “were dependent for their understanding of the possible relevance of the undisclosed material on transcripts of the Crown Court hearings and on the account of issues given to them by prosecuting counsel”. That is not the position in the present appeal. For, before and after we looked at the undisclosed material, we had the advantage of substantial submissions from Mr Mansfield which clearly and comprehensively identified the issues in the case on which the undisclosed material might be capable of bearing. But, leaving this aside, this court having, in accordance with s2(1) of the Human Rights Act, taken into account the judgments of the ECtHR in Rowe & Davis v UK, and Atlan and the other decisions of that court to which we were referred, saw no unfairness or breach of Article 6 by us examining the undisclosed material ex parte. In this respect we agree with the conclusion reached by the CACD in Davis, Rowe & Johnson (No 2). Indeed, if it were otherwise, it would not be possible for this court to quash a conviction, without ordering a re-trial, in cases such as Mullen  2 Cr App R 143, where none of the disclosed material which rendered the conviction unsafe had been seen by the trial judge, if public interest immunity were still being claimed before the Court of Appeal in relation to some of that material. This would be unjust and absurd. We give another example. If this Court examines undisclosed material which was not, but should have been, shown to the trial judge, and concludes that disclosure in an edited form would have been ordered by the trial judge, the test then to be applied by this Court is: whether a reasonable jury, had edited disclosure been made, could have come to a different conclusion, so that there is both lack of safety and unfairness. (see Francom  1 Cr App R 237 at 250 paragraph 50). Applying that test, let us assume that this Court were further satisfied that, having regard to all the circumstances of the case, the defence would not have made any use of the material if it had been disclosed ( see Jamil CACD  transcript 17th July 2001 EWCA Crim 1687). In such a case, if Mr Emmerson is right, this court would have only two choices – either to disclose the material in an unedited form or to order a retrial. That cannot be right. An appellant is not entitled to a retrial because of some immaterial error made before or during the trial and there is, in our view, nothing in the ECtHR’s judgments in Rowe & Davis or Atlan to suggest otherwise.
We add this. In the course of the hearing of this appeal we enquired of Mr Mansfield whether, if he were permitted to look at the matter in relation to which public immunity was claimed, he would be willing to give an undertaking not to disclose its contents to his lay clients. Having considered the matter overnight, consulted his professional body and taken his `clients’ instructions, he declined to give such an undertaking. He gave six reasons: a substantial risk of undermining public confidence and the clients’ confidence in the profession; the inability of counsel to perform his duty advising his clients as to their best interests; proper instructions from a client not in a position to appreciate the significance of the material would be precluded; counsel might receive material adverse to his clients about which he could not obtain proper instructions; counsel would have serious practical difficulties in conducting the case without accidentally disclosing confidential material; and, if the material could not be disclosed to counsel’s instructing solicitors, the matter could be compounded because of the solicitor’s unrivalled knowledge of the case and professional duty of disclosure to the lay clients. This approach has subsequently been endorsed in AG’s Guidance on the Disclosure of Information in Criminal Proceedings (2000). In the light of these considerations, this court proceeded to examine the matter ex parte.
The next question is whether non-disclosure to the trial judge of the matter seen by this court gave rise to an assertable breach of Article 6 by the Crown. In our judgment it did not. Mr Rabinder Singh’s analysis of Lambert satisfied us that the majority of the House of Lords decided that it is not possible for an appellant to assert, on appeal, Convention rights in relation to a trial before October 2000 (see per Lord Slynn para 9, Lord Clyde, paras 140-144 and Lord Hutton para 172). In any event, even if there were an assertable breach of Article 6, we would not regard that breach as, in itself, calling for any remedy other than a declaration of violation unless, by virtue of the breach, the jury’s verdicts were unsafe.
We turn next to the ex parte hearing which we held at the first stage of this appeal and its consequences. We considered the matter in relation to which the prosecution claimed public interest immunity before us in the context of all the matter before the trial judge, both disclosed on his order and undisclosed. We specifically bore in mind the grounds of appeal and the terms of the letter of 31st March 2000, from the CPS to the appellants’ solicitors setting out their disclosure strategy in response to the solicitors’ request for disclosure. We also specifically considered whether there was disclosable material relating to any warning by the Israeli ambassador or any involvement in the bombing by Mossad or in relation to bombings in Argentina in 1992 and 1994. Our approach was to consider whether there was a public interest in the non-disclosure of particular matter and, if there was, whether this was outweighed because it might, if disclosed, have helped the defence on issues raised by them at trial (see eg Keane 99 Cr App R 1 @ 7). Because a year had elapsed between the first and second stages of this appeal we again, at the second stage, and in accordance with the same considerations, looked at the matter in relation to which public interest immunity was claimed. We also took into account the further submissions made on behalf of the appellants during the second stage of the appeal. We are unpersuaded that the Crown’s system and strategy in relation to disclosure, as set out in detail in paragraphs 5.2 and following of their initial Skeleton Argument and paragraphs 3.2 and following of their further Skeleton Argument of 10th October 2001 is flawed. In particular the suggestion that they adopted too narrow an approach is unsubstantiated.
Having considered all the matter placed before us in this way, we were and are entirely satisfied about five things. First, prosecuting counsel have had access to everything they want to see and have examined all relevant and potentially material matter in accordance with the test propounded by Jowitt J in Melvin & Dingle as approved by the CACD in Keane at p6 and the CACD and House of Lords in Brown (Winston)  1 WLR 1599 at 1606-7 and 1998 AC 367 at 376-7 and they have continued to keep the need for disclosure under review. Secondly, the trial judge was correct to rule as he did in relation to the disclosure and non-disclosure of the matter before him. Thirdly, no one has attempted to conceal from this court any relevant or potentially material matter. Fourthly, public interest immunity has been rightly claimed in relation to the matter which we have seen, because it affects national security at the highest level and would, if disclosed, present a clear and immediate threat to life. Fifthly, apart from the two matters to which we shall refer, there is nothing of significance before this court which was not before the trial judge. Having ordered disclosure of these matters to the appellants, in a suitable form, and having heard submissions in relation to them, we are satisfied that no injustice was done to the appellants by not having access to that matter at trial. We say this, first, because the matter added nothing of significance to what was disclosed at trial and, secondly, because, for whatever reason, no attempt was made by the defence at trial to exploit, by adducing it in any form before the jury, the similar material in relation to the embassy which had been disclosed at trial. This included information, on the day before the bombing, that Hizbollah was planning attacks in London and Geneva and, after the bombing, that it had been carried out by Hizbollah using non-Muslim mercenaries. Information was also disclosed that three named Iranians were involved in the bombing under the direction of the IRGC Chief in Europe and in relation to terrorist activity in Argentina in 1992 and 1994. At trial, no attempt was made to place this, or other disclosed material pointing to the possible involvement of other groups, before the jury. Whether this was because the principal issue at trial was whether Reeda existed and this information was inconsistent with the appellants’ claim that Reeda was a Palestinian, or for some other reason, we do not know. We do not accept Mr Mansfield’s submission that its vagueness or contradictory nature precluded its use if, otherwise, it was thought to help the defence. Expert evidence was called for the defence that the bombers could have come from many different places, though responsibility was not attributed to any particular group or organisation. There was also expert evidence that the organisation with which Alami was connected did not believe in violence outside Israel. The judge’s summing-up rehearsed these matters in what Mr Mansfield called `commendable detail’ No complaint of any kind is directed to the summing-up. The jury could not have failed to realise that there were many possible candidates for carrying out bombings of this kind.
The two matters which we ordered should be disclosed during the course of this appeal were, first, further information, prior to the bombings, suggesting that a terrorist organisation unconnected with the appellants may have been contemplating an attack on the Israeli Embassy and, secondly, an explanation as to the circumstances in which a document was not shown to counsel and a later document was not shown to the trial judge. As to the information, for the reasons already given, this would have had no impact on the trial. As to the explanation about the documents, which we accept, this disposed of any possible sinister implication: we do not take the view that deliberate malpractice is a necessary or proper inference from repeated human error, particularly in the light of the explanation given to us in the ex parte proceedings. Further, having seen the later document which the judge did not see, we are satisfied that it, like the similar, but not identical, document which he did see, was not a document which ought to have been, or should now be, disclosed: its terms, so far as they are material, are properly reflected in the information which we ordered to be disclosed. Mr Mansfield’s final submissions proceeded on the assumption that this court had seen material, not disclosed, tending to suggest that another English-based group unconnected with the appellants may have been involved in these bombings. All we say about that assumption is that, if it were correct, this court’s obligations, at common law and under Article 6, would have required us to order its disclosure. We should also emphasise that assessment of the accuracy or reliability of the information disclosed is no part of this court’s function.
As to the third ground of appeal, although we read the statements, in particular from Mr Wise, proffered under s23 of the Criminal Appeal Act 1968, as amended, we declined to receive this evidence for several reasons.
It is conceded by the appellants that, at or prior to trial, the prosecution disclosed to the defence documents which, if examined, identified Mr Wise by name and address, itemised documents left at Mr Wise’s premises by a man now calling himself Corleone, charted the handling of those documents by the police up to 31st August 1994 and included a hand written report on that date by Detective Sergeant Steven Thomas, describing the documents in detail and concluding they lacked significance in relation to the bombings with which this case is concerned. In these circumstances, we are unpersuaded that there is a reasonable explanation for the failure to adduce Mr Wise’s evidence at trial. Furthermore, if his evidence would have been admissible at trial, so too would have been the police records and reports contemporaneous with Mr Wise’s production of the Corleone documents to the police. These are entirely inconsistent with Mr Wise’s recollection, now, that the Corleone documents included a hand drawn map of the Israeli Embassy. Finally, even if Mr Wise’s current account is capable of belief it affords no ground for allowing these appeals. When viewed, as it must be, in conjunction with the contemporaneous police records to which we have referred and all the other statements and documents presented to us in the appellant’s bundle, it merely shows, at the highest from the appellants’ point of view, that an apparent fantasist with Iranian connections, with many convictions for petty dishonesty, who professed, sequentially, several different faiths and even more names, and who was not in this country between the end of May 1994 and January 1995 had a list of arms and ammunition, explicable by unrelated activities, and may have had a sketch of the Israeli Embassy. None of this provides significant support for a claim that he was responsible for, or a party to, the bombings presently under consideration. Mr Wise’s evidence could not have made any difference to the jury’s verdict.
Accordingly, there is, in our judgment, no demonstrated breach of the appellants’ Article 6 rights and no reason to regard their convictions as unsafe. The principal issue for the jury was whether, as both appellants claimed, Reeda existed. There was a great deal of evidence entitling the jury to conclude that he did not. If he did not, the case against the appellants of complicity in these bombings was extremely strong. These appeals against conviction are dismissed.