ReginavFeilemPadraicO'Hadhmaill
No. 94/7145/X2
Court of Appeal Criminal Division
9 February 1996
1996WL1090460
Before: The Lord Chief Justice of England ( Lord Taylor of Gosforth ) Mr Justice Latham and Mr Justice Hooper
Friday 9 February 1996
Representation
Mr Geoffrey Robertson QC and Mr Ben Emmerson appeared on behalf of the Appellant.
Sir Derek Spencer SG QC , Mr John Nutting QC and Mr Richard Horwell appeared on behalf of the Crown.
Judgment
Friday 9 February 1996
The Lord Chief Justice:
On 8 November 1994, at the Central Criminal Court, the appellant was convicted of conspiring between 1 January 1993 and 22 February 1994 to cause an explosion. He was sentenced to 25 years imprisonment. Other counts of possessing an explosive substance with intent and possessing a firearm with intent to endanger life were left on the file on the usual terms.
On 1 February 1996 the appellant's appeal against conviction was dismissed and we heard argument in support of an application for leave to appeal against sentence. We now give our reasons for dismissing the appeal against conviction and our decision as to the application regarding sentence.
The essential facts of the case were not in dispute and may be stated shortly. The appellant was a lecturer in Sociology at the University of Central Lancashire in Preston. He lived in rented accommodation nearby in Accrington. On 13 February 1994 a Datsun motor car was imported from Ireland. Its movements were followed by MI5 officers. On 18 February it was driven to the South Mimms service area on the M25 in Hertfordshire. The appellant had been observed travelling to that area on the 13, 15 and 18 February. On 20 February he collected the car from the service area and drove it to his home. The following afternoon he drove it to a motor accessories shop. There, he began dismantling the rear seats of the car when armed officers moved in to arrest him. Concealed inside the vehicle's boot and seat cavities they found 17 packages of Semtex, 17 TPU's, 17 detonators, a gun and a quantity of ammunition.
Inside the appellant's wallet there was a number of cigarette papers wrapped in cellophane. Some of them bore a code which enabled ‘ phone calls and meetings to be arranged secretly. Others contained lists of possible military, political and strategic targets. Whilst under observation, the appellant had bought a spade and torch on 6 February and was seen carrying a 5 gallon fermentation bucket on 17 February. On the following day he left home with the bucket. He had constructed a hide consisting of a buried fermentation bucket in woods near his home and a spade was recovered near the hide.
It was admitted that the appellant was knowingly in possession of explosives and ammunition. It was further admitted that he was a member of the IRA and was acting on their behalf in handling the items found in his possession. It was the prosecution's case that he was to have played a controlling role in a planned IRA bombing campaign to take place in England in the early part of 1994. The items found suggested that up to 17 semtex based explosive devices, including two under-car booby traps, were to be planted. The alleged targets were to include military bases, members of Parliament and strategic installations.
The defence case was that despite the admissions, the evidence did not necessarily disclose a settled conspiracy to cause explosions. The appellant did not give evidence or call any witnesses but at his request his response on arraignment was put before the jury as a written admission in the following terms:
“ With all due respect as far as I'm concerned I've committed no crime. As far as I'm concerned I shouldn't be before a criminal court. The actions I've been accused of are political actions which result from the ongoing conflict which results from Britain's colonial conquest of Ireland. As far as I'm concerned I'm a political prisoner, and that's how I should be treated by your government. That's all I have to say. As I say, that's my belief.”
In the course of his final speech counsel for the appellant argued that a settled agreement and intention to carry out a bombing campaign had not been proved. He based his submissions on the Joint Declaration of 15 December 1993 by the Prime Minister and the Taoiseach which led to the cease-fire agreed in August 1994. The thrust of his argument was that it was highly unlikely the IRA would wish to launch a major bombing campaign in England whilst the “ peace process” was under discussion. However, there had in fact been a number of IRA bombs at various locations in England between December and August. In March 1994 there were mortar bombs fired at Heathrow Airport. A detonator went off but the bombs themselves did not explode. They contained semtex. In July, a lorry bomb was discovered at Heysham docks and in August a bomb was found and defused at Brighton Pier.
No questions had been asked of prosecution witnesses to lay a foundation for the submission that there had been a change of policy by the IRA during the first eight months of 1994. The tenor of defence counsel's final speech was such that the Solicitor General applied to the trial judge for leave to call rebutting evidence as to the bomb incidents which had occurred in that period.
The trial judge acceded to that request and Detective Superintendent Walsh, who had given evidence as part of the prosecution case, was recalled. He was examined, cross-examined and re-examined after which there were supplementary speeches before the trial judge summed the case up.
The first ground of appeal argued by Mr Robertson QC, who did not appear at the trial, was that the judge was wrong to allow the evidence in rebuttal. Mr Robertson submitted that the prosecution ought to have anticipated that the defence would argue as they did and ought to have called the evidence about bombs in the first eight months of 1994 as part of their case. As to that, the conduct of the defence before and during the hearing is relevant.
Initially, the appellant had represented himself and had declined to have legal assistance. At a number of pre-trial hearings, his stance had been that adopted in a number of earlier IRA trials. He declined to recognise the jurisdiction of the court and remained mute. He declined to plead when arraigned and was accordingly recorded as pleading not guilty. Very shortly before the trial, he was prevailed upon to accept the services of solicitor and counsel. Letters were written by his solicitor to the prosecuting authority indicating that the trial would be extremely short but nothing more. In view of that course of conduct and the fact that the appellant had been caught red-handed in possession of such a large cache of explosives and ancillary items, it was thought by the prosecution that the short trial signalled by the defence solicitor would consist simply of the prosecution being put to proof of its case against a defendant who did not recognise the Court. The response to arraignment quoted above which the appellant wished to go before the jury supported that view. Since no questions were asked of prosecution witnesses to foreshadow the argument in the final speech, it came, we are told by the Solicitor General, as a total surprise. In view of the bomb incidents mentioned above there was no reason, he submitted, why the prosecution should have anticipated the argument on which the defence relied. In our judgment, this was a case in which the prosecution could not reasonably had been expected to foresee the argument which was raised.
Mr Robertson says, however, that, even so, rebuttal evidence should not be allowed if what is to be rebutted is an argument rather than evidence. He submits that the defence called no evidence and counsel in his final speech specifically told the jury that what he was saying was argument not evidence. The trial judge took the view, with which we agree, that counsel's argument contained the evidential implication that there had been no bomb activity in England during the relevant period. The effect of the speech might therefore have been to leave the jury under the misapprehension that the suggested change of policy by the IRA was evidenced by an absence of bombs in England during that period. We wish to make it clear that the trial judge did not suggest there was any impropriety by defence counsel, merely that his approach had been mistaken. We agree with that view. Nevertheless, we are quite clear that the judge was faced with the problem of how to rectify matters in the interests of justice.
Mr Robertson has suggested that, if any action needed to be taken, all that was necessary was for the judge to make a statement to the jury. His suggested draft of such a statement would necessarily have involved the judge giving evidence and would not have given an opportunity to either prosecution or defence to explore the nature of the bomb incidents. Whatever the arguments, therefore, for other possible courses which the judge might have taken, we are firmly of the view that his exercise of discretion to allow rebuttal evidence cannot be faulted.
Mr Robertson has a final argument on this ground. The judge, in allowing Detective Superintendent Walsh to be recalled, laid down the limits of the evidence he could give. It is clear that in the course of his evidence he expressed views which went beyond mere evidence of fact. Mr Robertson submits that the extension of his evidence beyond the limits laid down by the judge produced unfairness. We have looked closely at the transcript of Detective Superintendent Walsh's evidence. When examined by the Solicitor General, there were only two points at which his evidence went beyond a statement of fact. Both concerned the state of readiness and the potential explosiveness of the items found. The matter of opinion which the judge had specifically excluded was opinion or judgment as to whether the IRA had scaled down their activity in 1994 as against their earlier operations. It was in the course of cross-examination that, after defence counsel had elicited statistics as to the number of bombs in 1992, 1993 and 1994, he asked a further question about the reduction in numbers. It was that question which elicited an explanation from the witness to the effect that anti-terrorist activity had been more successful in the later period. Thereafter, further questions on this issue were asked in cross-examination. Having considered Detective Superintendent Walsh's evidence in detail and as a whole, we rejected the suggestion that it resulted in any unfairness. Accordingly, the grounds of appeal based on the rebuttal evidence were rejected.
A further ground concerned the learned judge's directions as to what would constitute a criminal agreement for the purposes of Section 1 of the Criminal Law Act 1977 . The defence argued that despite the possession by the appellant of the items and materials found, the prosecution had not proved an agreement to cause an explosion. It was a possible view of the facts that the explosives were being hidden away and stored “ just in case” the peace process failed to produce an outcome satisfactory to the IRA. No firm agreement or intention to cause an explosion had therefore been proved.
The trial judge dealt with the ingredients of the offence and at page 76 of the summing-up said this:
“ So in order to be guilty of such a charge:
(1) A defendant must have agreed with one or more persons to combine to work together;
(2) the defendant must intend that the outcome of their work will be the commission of some crime; and
(3) at least one of the other parties to that agreement must also have the same unlawful intention to bring about the same crime, in this case to cause explosions” .
At page 77, he added:
“ So what you are going to have to decide are these two things:
First, was there a plan afoot with the object of causing explosions? If the answer to that is yes, the second thing is: Was the defendant part of that plan knowing the object of it and intending that that object should be achieved? In other words, did he too not only knowingly join the plan but intend that the end result should be causing explosions? That is what the prosecution have to prove” .
He stated the defence very clearly at page 80 as follows:
“ The defendant…says… ‘ I agree that I played a part in collecting and having this explosive in my possession, but I was no part of any settled plot to cause explosions, or rather it has not been proved that I was — unlawfully to possess them, yes, but no more, and that is not enough. … if the true position was that the conspirators, the IRA, had not finally made up their minds whether to use the stuff or not to cause explosions, the conspiracy as charged has not been proved.”
At page 97, the judge said:
“ As a matter of law I direct you that it is no defence for conspirators to say in effect:
‘ We had decided, that is to say we had formed the intention to blow up the Houses of Parliament, but we would have stood down if such and such had happened. Or we could put it another way: We had decided, we had formed the intention to conduct a big bombing campaign unless the peace process succeeded in getting us what we wanted’ .”
That, I direct you is not a defence because the agreement would be there; the intention would be there, which are the two key factors. The mere fact that the intention might be deflected by events over which those who were party to the agreement had little or no control is neither here nor there.
On the other hand what would amount to a defence is, if no firm settled agreement to cause explosions had been reached at all. Do not forget the essence of conspiracy is the agreement and therefore, if there is no agreement, it stands to reason that there can be no conspiracy.”
The judge again put the defence position in clear terms at page 98:
“ If the true position may be that at the time of the defendant's involvement the conspirators had got no further than something on these lines:
‘ Well, the peace process may or may not work out and we may get what we want out of it. If it does not and if we don't, we will have to go back to the drawing board. One of our options will be to resume the bombing and we will think about that later. Meanwhile, just in case, we had better stash some semtex away so that we are ready in case we make that decision’ ,
In that case there would have been no settled agreement, no positive decision taken to cause explosions, merely to consider doing so, and therefore there would be no conspiracy to cause explosions.”
Mr Robertson makes no criticism of the passages we have quoted above from the learned judge's directions on the law. However, the judge then went on to try to summarise the position and it is in relation to that summary that the criticism is made. He said at page 99:
“ You have three possible situations:
(1) This has nothing to do with the so-called peace process; the initiatives … it is just another IRA bombing campaign on the way. That is the prosecution's No.1 position.
(2) As an alternative, this is the IRA catering for the future. If the results of the peace process satisfy them, well and good; if not, it was their intention to resume their bombing campaign. That is the prosecution's what I might call ‘ fall-back’ , position.
(3) This is the IRA catering for the future but not yet having made up their minds whether to use the semtex detonators to make bombs and set them off or not.
Now, it is only No.3 that would afford the defence.” Mr Robertson complains that situation (2) as the judge stated it should result in a verdict of not guilty. We cannot agree.
It is clear from all the judge said in the passages we have quoted that the prosecution had to prove an agreement and an intention to cause an explosion. It is equally clear from all he said that if the appellant and his associates had not reached an agreement and an intention and had not yet made up their minds to use the explosives, if they were simply holding them in case they wished at some future time to agree and form an intention to use them, the proper verdict would be not guilty. It may be that the wording of situation (2) could have been improved but the distinction between situation (2) and situation (3) was clearly stated. The former required an intention; the latter involved the parties “ not yet having made up their minds” .The only sensible point in having the two situations differentiated derived from that distinction. Situation (2) involved an agreement and intention to cause explosions which might be cancelled or reversed only if the political aims of the conspirators happened to be achieved by other means. Thus, on this footing, the prosecution would have proved a settled agreement and intention to cause explosions. The fact that some supervening event in the future might cause a change of mind would be no answer to the charge.
We were referred to a number of authorities as to qualified agreements, notably O'Brien 59 Cr App R 222, Reed [1982] Crim LR 819 and Jackson (C.A. Judgment 28 February 1985) as well as text books and the views of commentators. However, we have not found any of these authorities helpful in relation to the specific issues raised by this case. In our judgment, the trial judge's approach was correct and this ground of appeal fails.