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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 >> Appeal From R. Prosecution Service Under Section 58 of the Criminal Justice Act 2003 Sub Nom R v I.K.,a.B., and K.A.  EWCA Crim 971 (27 April 2007)
Cite as:  EWCA Crim 971
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
MR JUSTICE MACKAY
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
MR JUSTICE HEDLEY
| Appeal from the Crown Prosecution Service Under Section 58 of the Criminal Justice Act 2003 Sub nom R
|I.K.,A.B., and K.A.
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Mr Edward Fitzgerald QC and Mr D. Friedman(instructed by Birnberg Peirce) for the I.K.
Mr H. Blaxland QC and Mr E. Grieves (instructed by Birnberg Peirce) for A.B.
Mr T. Munyard and Miss R. Refahi (instructed by Birnberg Peirce) for K.A.
Hearing dates : 14, 15 and 20 March 2007
Crown Copyright ©
President of the Queen's Bench Division :
a) whether it was appropriate to extend principles of "double jeopardy" to proceedings in SIAC and subsequent criminal proceedings. This issue concerned the proceedings against IK.
b) What material is to be considered in deciding whether criminal charges are founded on the same or substantially the same facts? This ground related to AB and KA. On analysis this question, too, required us to address further aspects of the principles relating to double jeopardy.
a) "were complicit in or party to the making of some or all of certain transfers of money between May 1999 and September 2003 to the thirty three recipients set out in a schedule of money transfers dated 31st January 2007";
b) "were likewise engaged in the manufacture and distribution of false documents of identification and/or travel documents supplied or intended to be supplied to persons who shared their aims, or who were the dependents of such persons";
c) "were at the relevant time members of LIFG and supported its aims which were primarily regime change in Libya, but which also included support for the activities of a wider trans-national Jihad, in the sense of an armed struggle with governments of other countries perceived as enemies of true Islamic beliefs";
d) "These activities, engaged in by the defendants, fall within the meaning of terrorism as defined by section 1 of the 2000 Act."
In his judgment Mackay J recounted the relevant history and made a number of findings of fact. We gratefully adopt, and where appropriate effectively repeat his meticulous analysis, supplemented in a limited way by further information provided during the hearing. The defendants deny all the allegations against them. We must, therefore, emphasise that we are here considering unproved allegations and assumptions.
The Statutory Regime
"The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably
(a) believes that person's presence in the United Kingdom is a risk to national security; and
(b) suspects that the person is a terrorist."
"…there are two reasons for supposing that the provisions of sections 21 and 23 of the 2001 Act are to be applied only to those said to be linked to Al Qaeda and its associates. First, the 2001 Act falls to be interpreted in the light of section 3 of the Human Rights Act, which would tend to prevent the powers of detention being exercised in the absence of a connection with the state of emergency. Secondly, the Attorney General indicated to us on behalf of the government that if the powers under sections 21 and 23 of the 2001 Act were exercised against a person not said to be linked with Al Qaeda or its associates, that would be a proper basis for this Commission to set aside the certificate under section 25(2)(b) of the Act. "
Part 4 of the 2001 Act, which provided the relevant legislation, was repealed after the decision of the House of Lords in A and Others v SSHD  2 AC 68. However, it was in force at all times material to the history of this case.
History, as it relates to IK
"You are a member of a group of Mujahideen engaged in active support for various international terrorist groups, including networks associated with Osama Bin Laden. Your activities on behalf of these networks include the provision of material support".
History, as it relates to AB and KA
The relationship between IK, AB and KA
Mackay J's decision
"My conclusions…are that the position he faces in this trial, unusual and unprecedented though it is, ought to be recognised as double jeopardy, and of a type which would make the current trial oppressive to a degree which requires the powerful remedy of a stay. The reality of his position is that on substantially the same or significantly overlapping facts the charges he now faces have been the subject of a decision by a superior court. As well as being unjust to him, relitigating these issues runs the risk of producing inconsistent decisions contrary to the broader interests of justice.
Though SIAC is not a criminal court, I consider that its function, and the potential consequences of its exercise of them, was so close to that description as to indicate that the double jeopardy principle should be applied and my discretion should be exercised in favour of the application".
AB and KA
"I am quite satisfied that the police here acted in good faith throughout, and reject Mr Munyard's suggestion that the lesser charges were used, after pleas of guilty were entered, as a type of holding exercise, to have the defendants imprisoned while the more serious charges were considered at leisure ".
"I am also satisfied that before these men's cases were disposed of in the Birmingham Crown Court, while the Crown may not have had a complete case against them under the terrorism legislation there was ample material in their hands to alert them to the more serious implications of these men's activities "
" (1) On an appeal under section 58, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates.
(2) Subsections (3) and (5) apply where the appeal relates to a single ruling.
(3) Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted of that offence.
(4) Where the Court of Appeal reverses or varies the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following-
(a) order that proceedings for that offence may be resumed in the Crown Court,
(b) order that a fresh trial may tale place in the Crown Court for that offence,
(c) order that the defendant in relation to that offence be acquitted of that offence,
(5) But the Court of Appeal may not make an order under subsection 4(a) or (b) in respect of an offence unless it considers it necessary in the interest of justice to do so."
AB and KA
The Legal Principles
"As a general rule a judge should stay an indictment…when he is satisfied that charges therein are founded on the same facts as the charges in the previous indictment on which the accused has been tried, or form or are part of a series of offences of the same or similar character as the offences charged in the previous indictment…but a second trial on the same or similar facts is not always unnecessarily oppressive and there may be in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of that particular case, exercise his discretion as to whether or not he applies the general rule".
"If the Crown was allowed to prosecute as many times as it wanted to do on the same facts, so long as for each prosecution it could find a different offence in law, it would be a grave danger of abuse and injustice to defendants…. There is another factor to be considered, and that is the courts' duty to conduct their proceedings so as to command the respect and confidence of the public. For this purpose it is absolutely necessary that issues of fact that are substantially the same should whenever practicable be tried by the same tribunal and at the same time…no system of justice can guarantee that every judgment is right, but it can and should do the best to secure that there are not conflicting judgments in the same matter".
"The fact that it (the Crown Prosecution Service) chose to frame a prosecution on only one transaction, notwithstanding the material as to others available to it and lying, albeit unused, in the prosecution papers, would, I think, make it difficult for an English judge to resist an application for a stay of an abuse of process such a prosecution as that now sought by the French authorities in these extradition proceedings".
"…..In our view, once it is appreciated that in the care proceedings the appellant was not being prosecuted, and that he was never at risk of conviction, and that the judge who decided those proceedings lacked jurisdiction finally to exonerate or condemn the appellant and, if to condemn him, to pass sentence, any such concerns would be quickly extinguished. Indeed public concern might be greatly engaged if it were thought that criminal proceedings affecting the public interest, and in this case the death of a baby, had in effect been decided by a court lacking due authority, and not "competent" for the purpose. These concerns would be that much greater, if, as here, the determination were made in private."
Conclusions in relation to IK
Conclusions in relation to AB and KA.
Interests of Justice