R v Kamel Bourgass

No Substantial Judicial Treatment

Court

Court of Appeal (Criminal Division)

Judgment Date

19 July 2005

Case No: 2004/4217/C3

Court of Appeal (Criminal Division)

[2005] EWCA Crim 1943, 2005 WL 1997757

Before : Lord Justice Judge ( Deputy Chief Justice of England and Wales ) The Honourable Mr Justice Curtis and The Honourable Mr Justice Newman

Tuesday, 19 July 2005

On Appeal from Central Criminal Court Mr Justice Penry-Davey and a Jury

Representation

Mr M. Massih QC , Mr J. Bennathan and Mr Mark Summers for the Appellant.

Mr N. Sweeney QC , Mr M. Dennis and Miss A. Morgan for the Prosecution.

Judgment

1. In the afternoon of 14th January 2003, police officers from the Greater Manchester Police force attached to the Special Branch and Tactical Aid Unit together with two officers from the Immigration Service went to 4 Crumpsall Lane, Manchester. They were in possession of a warrant to detain Sofiane Mihoubi (otherwise known as Riyahd) and to search Flat 4 at that address.

2. Shortly after their arrival a truly terrible incident occurred. Four police officers were wounded, one DC Stephen Oake, fatally. He received a total of eight stab wounds from a kitchen knife in the region of his chest. Three of these wounds directly caused his death. Of the other officers who were injured, SB “John” received three stab wounds to the chest and back, SB “Steve” two stab wounds to the left upper arm, and PS Grindrod one stab wound to the back of the upper left thigh. These injuries were inflicted with the same kitchen knife. The knife which killed DC Oake and wounded his colleagues was wielded by the appellant.

3. On 29th June 2004 in the Central Criminal Court before Penry-Davey J and a jury, the appellant was convicted of murder of DC Oake, attempted murder of SB Steve and SB John, and wounding PS Grindrod with intent to do him grievous bodily harm. He was found not guilty of attempting to murder Sergeant Grindrod.

4. Following conviction, the appellant was sentenced to life imprisonment for murder, with a minimum term fixed at 20 years’ and 6 months’ imprisonment, together with concurrent terms of 15 years’ imprisonment on each count of attempted murder and 8 years’ imprisonment for wounding with intent. He now appeals against conviction with leave of the single judge who granted leave to appeal on a single ground arising from the admissibility of evidence involving the appellant’s association with ricin and other poisons. Leave to argue further grounds was refused.

5. We are not here directly concerned with an appeal from the appellant’s subsequent conviction for conspiracy to cause a public nuisance, which arose from his links with ricin. The present ground of appeal is based on what is said to have been the wrongful admission of some of the material relevant to the conspiracy case which was deployed in the murder trial, after it was decided for practical case management reasons that there should be separate trials, and that the charge of murder, and the associated charges, should proceed first.

6. Following a trial which lasted no less than 11 weeks, we were provided with voluminous typed pages of written arguments in support of the appeal and renewed grounds of appeal, containing references to countless authorities both within and outside this jurisdiction, as well as sustained and detailed submissions, as well as speculation about the facts. We have considered them all. Yet we must start by emphasising that there was no dispute at trial that the appellant was responsible for all the injuries suffered by the four police officers. The real issue was self-defence, or more accurately, whether the prosecution had proved that the appellant had not been acting in self-defence. In context, this led to consideration whether the necessary intent required for conviction was established. Save in one respect, no criticism is made of the trial judge’s directions to the jury. By its verdicts, the jury concluded that the prosecution had negatived self defence and proved intent. Out of an abundance of caution, given the minimal nature of any evidence to sustain it, and in the context of the count of murder, Penry-Davey J left provocation to the jury. This too was rejected by the jury.

7. The Immigration Service has no records in the name of Kamel Bourgass, and there is no record of the date when he entered this country. The appellant applied for asylum on 31st January 2000 using the name Nadir Habra. He claimed to have been born in Algeria in 1973, and asserted that he had entered the United Kingdom clandestinely on 30th January 2000, the day before he applied for asylum. He was interviewed in August 2001, and his application for asylum was refused on 22nd August 2001. He was allowed to remain in the United Kingdom, pending time for any appeal, provided he remained at a temporary address in Thomas Road in North London. In September 2001 notice of appeal was served by solicitors. The appeal was heard in November 2001. The appellant did not attend the hearing. On 11th December 2001 his appeal was dismissed. He was informed of the decision. Thereafter he remained liable to arrest and deportation. As we understand it, he simply disappeared.

8. On 5th January 2003, a police search of an address at 352b High Road, Wood Green in north London began. It lasted three days. Because of what was found, it became widely publicised in the media. Among the vast number of items revealed by the search was a locked bag inside which was a brown envelope, addressed to Nadir Habra (with the name obliterated). The envelope contained £4100 in cash, together with a number of hand-written “recipes” identifying appropriate ingredients and equipment to enable various types of poisons, including ricin and cyanide and explosives, to be manufactured, together with paper capable of being used as filter paper. There were plastic bottles containing a variety of different chemicals which could have formed the ingredients for the manufacture of ricin and cyanide, together with a number of further items including thermometers, rubber gloves, blotting paper, various electrical items, together with a pestle and mortar said — wrongly as it turned out, on the basis of a false positive — to contain traces of ricin, and diagrams for an improvised time delay explosive device involving a detonator. In addition a wallet was recovered which contained eleven passport photographs, all apparently of the appellant, and two pieces of writing in Arabic. On any view there was an abundance of material to give rise to the gravest suspicions about the man shown in the photographs, named “Nadir”. For convenience, we shall refer to this material as the ricin evidence. A photograph of the appellant in that name was immediately circulated. He was being sought by the Metropolitan Police under the Terrorism Act 2000 .

9. At approximately 4.15 pm on 14th January a number of police officers attended 4 Crumpsall Lane, Manchester. Warrants were issued under the Terrorism Act 2000 and the Immigration and Asylum Act 1999 . As we have already indicated the appellant was not the target of the operation. They were looking for and intending to detain Mihoubi (aka Riyahd). This was the catalyst for events which culminated in DC Oake’s death.

10. The door to Flat 4, 4 Crumpsall Lane was opened to the officers by the resident occupant, Alwerfeli. He was taken into the living room of the flat and ordered to sit in an armchair. Mihoubi was found standing in the bedroom together with the appellant. Both were ordered to sit on one of the two beds in the room. Mihoubi was formally detained. The appellant was not. When asked his name, he said he was “Kemal”. The link between him and the finds at Wood Green was not immediately appreciated. And for a while everything and everyone, including the appellant, remained calm. However an officer thought that she recognised the appellant as the wanted man “Nadir”, whose photograph she had seen the previous day at Special Branch office. Gradually the belief that one of those found by the police at Flat 4 was of considerable potential importance began to percolate among the participants in the operation. No doubt the atmosphere became increasingly charged. Once there were sufficient grounds linking the appellant with Nadir Habra, shortly before 5 pm, he was arrested under s 41 of the Terrorism Act : Mihoubi and Alwerfeli were arrested under the same provisions. Some delay then ensued and for the time being the appellant remained in the bedroom with Mihoubi, and Alwerfeli remained in the living room. The appellant was not handcuffed. No complaint was registered about his behaviour. DC Oake, himself unarmed, was one of those responsible for the appellant’s custody.

11. It will be convenient now to explain the appellant’s case. He was interviewed on 16th January in the presence of a solicitor and interpreter. He indicated that he understood the caution, and his rights, and a prepared statement was handed to the interviewing officer. Thereafter the appellant declined to answer any questions, and when charged with murder and attempted murder, indicated that he wished to make no comment. His prepared statement reads:

“I Kemal Bourgass will say as follows:

On the 14th January 2003 I was at Flat 4 Crumpsall Lane Crumpsall.

The police attended in the afternoon and said, “Terrorism, don’t say a word”.

I was in the bedroom. I was afraid.

I accept I punched the officer in the groin while in the bedroom 15 to 20 minutes after they had arrived. I did this to gain the opportunity to flee because I was scared.

I ran from the bedroom to the kitchen because I wanted to escape from the window there.

I realised it was too high up and I could not escape from there.

I thought if I started to climb the window they would catch me.

I picked up the knife from a tray of cutlery which was on the counter.

My intention in picking up the knife was to use it to scare the police so I could get away.

I left the kitchen and tried to head for the door. I accept I made a motion with the knife holding it in front of me.

I wanted the police to back away from me to allow me to edge to the door to escape. I hoped they would scatter.

They did not go backwards but came forward with their batons raised.

I’d picked up the knife to scare them but they were not scared.

I did not know what to do. They swarmed on me. At that split second I thought that maybe they were going to beat me to death because I held a knife.

One of the officers who lunged at me did not have a baton. I do not know who I caught with the knife. It was chaos.

When they were on top of me I do not know what happened. I did not aim to cause the officers serious harm or worse.

I sincerely and honestly regret everything that happened.

I wish I was dead. I wish I’d stood still and had not moved.

To the family of the deceased I am extremely sorry and I wish I’d not touched or injured anyone not even a fly.”

12. This statement was prepared and submitted before the appellant, or indeed anyone acting on his behalf, could have been aware of the criticisms which were later to be directed at the management of the police operation. The statement was entirely silent about why it was so imperative for the appellant to escape from the police, and it also lacked any report or complaint of actual or anticipated verbal or physical aggression by the police against the appellant until after he himself had become violent and armed himself. The statement twice said that his object in picking up the knife was to scare the police. It did not suggest that he did so to protect himself. At the end of many days, indeed weeks spent at trial, criticising individual police witnesses and the police operation as a whole, this statement was the only material before the jury from the appellant which gave his account of the incident.

13. The Defence Statement made under s 5 of the Criminal Procedure and Investigations Act 1996 , was provided just over a year later in March 2004. It was plainly drafted by a lawyer. The relevant passages read:

“In relation to all counts, the defendant … will say at trial that:

i. At all material times, he acted in self-defence.

ii. No intention to kill/cause serious harm.

The Defendant will refer to and rely upon, inter alia, his prepared statement [with] which set out the detail of the said defences.

…

Self defence:

“i. The defendant was co-operative and calm for well over an hour. There came a time when, as a result of the demeanour, language and actions of the police, the defendant became scared and intimidated. The defendant could hear more cars arriving outside the address. In all the circumstances he genuinely feared for his personal safety. He feared that the next actions of the police at Flat 4, 4 Crumpsall Lane were to harm him. The Defendant perceived PC Flemming to be acting in an increasingly aggressive manner.

ii. The defendant thus believed that he was entitled to act in anticipation of that perceived threat, and sought to escape from the flat.

iii. The defendant’s fears and reactions must be judged against his prior experiences.

iv. The defendant punched PC Flemming in the groin once, so as to effect an escape from the bedroom into the kitchen, where there was a window.

v. The defendant was unable to escape from the kitchen window. The Police were approaching him. The defendant instinctively grabbed the first thing that came to him, that being a knife, to defend himself. His intention was to defend himself by scaring the police into retreat, so as to facilitate escape from the main door of the flat.

vi. However, instead. of the police retreating, the police converged upon him. The defendant does not accept the entirety of the factual account given by the various officers in this regard. The defendant was set upon and hit repeatedly.

vii. He genuinely feared that the intentions of the police at Flat 4, 4 Crumpsall Lane were to kill him. The defendant did no more than was reasonable to defend himself from (what he perceived to be) a police attack that he had (whether mistakenly or otherwise) feared.

viii. The defendant retreated back into the bedroom to prevent being hit and to try and to escape from the window in the bedroom. When the defendant went to the kitchen window, he was not prepared to risk his life in jumping, he was now prepared to risk his life as he was certain that if he remained in the flat he would be killed.

ix. As the defendant reached the window in the bedroom the lights went off. The lights were turned off by the police. The defendant was unable to see anything. The defendant believed that this was a deliberate act by the police and that they were going to kill him.

x. The defendant was grabbed by some of the police officers and continued to be hit by them. He was physically prevented from reaching the window. The defendant instinctively turned around with his right hand and pushed them off him. He still had the knife in his right hand at the time.

xi. The defendant started to get near to the exit of the bedroom, but was then pulled backwards by an officer in a bear hug type grip. At the same time, the defendant was still being attacked from other officers in front of him. The defendant’s head was facing towards the ground and his vision was severely limited. The defendant was trying to defend himself from the various blows. He therefore hit the person who was holding him with the hand that was carrying the knife.

xii. The police officers at this point where hitting him with everything they had, including their fists, boots and metal batons. The defendant received many hits to his head and other parts of his body.

xiii. Due to the lights going out, together with the defendant being hit repeatedly and the speed and chaos of the incident, the defendant is unable to recall certain details of the incident.”

14. This later Statement asserted that the appellant was frightened and fearful of an attack by police officers in which he would or might be killed. This therefore provided his explanation for his desperate need to escape and it was to be anticipated would provide the basis for his defence at trial, and established the context in which the judge came to give the rulings which are now criticised. Indeed this was one of the issues explored in cross-examination with police officers. In the result however, the appellant did not support it in evidence himself.

15. We must finally note an application made on the appellant’s behalf to dismiss the counts of attempt murder. In oral argument at the dismissal hearing in November 2003, the application was directed at two of the counts. The basis of the application was that there was no evidence from which an intention to kill could be inferred. In short, the dismissal hearing directed specific attention to the absence of relevant evidence indicating the required mental ingredient for attempt murder. At that hearing the Crown gave oral notice of an intention to rely on the ricin evidence.

16. Returning to the narrative of events on 14th January, the appellant was examined by a doctor at 7.40 pm. The doctor observed grazing to his forehead and both cheeks, his right shoulder and upper right arm, superficial grazing to his left hand, and grazing to his right hand and fingers. There was a one inch laceration on the right index finger, together with grazing to the spine. All the injuries were described as superficial.

17. On 15th January, after a complaint by the appellant that he had been assaulted en route to court, he was examined by a different doctor. He claimed that he had suffered a bump to his head, that the handcuffs had been too tight and that he had been assaulted on his ankle. There was no sign of any head injury, the handcuff marks were normal, and a red mark on the ankle had been noted during an earlier examination. The appellant declined medication.

18. The appellant was interviewed at Paddington Green Police Station during 28th, 29th and 30th January about the findings at Wood Green. His solicitor and an interpreter were present. The interviews were recorded on audio equipment, and the majority were also video recorded. The issues explored in these later interviews expressly related to the ricin issue, not the events on 14th January. The appellant denied that he had written the “recipes”, but there was handwriting and fingerprint evidence which linked him to them, and to a number of the jars, as well as the envelope containing cash, and indeed a number of the objects found at Wood Green. He said that he had found the recipes and other items in a bag in Brixton, but, because he realised how dangerous the information was, he had not told anyone else. He had locked the bag containing the envelope with the recipes in it and the cash himself. He also spoke about various ways of making medicines by crushing and mixing seeds. He denied having any false passports or identity cards. He had not been trying to create a wiring mechanism for detonation purposes. The brown manila envelope originally addressed to Nadir Habra, had been overwritten by him so that nobody would discover the name. The cash was his, and represented savings from his salary. The photographs were simply souvenirs. He had kept the “recipes” out of stupidity. He asserted that no-one else had touched the recipes. He was unable to explain the presence of fingerprints of others who were subsequently accused of conspiracy with him. The “recipes” were written in Arabic and photographs were provided for the jury, with translations into English.

19. At trial the appellant gave evidence at a voir dire conducted to consider whether these interviews should be excluded. The submission was largely based on the oppressive nature of the conditions under which the appellant was confined, and the difficulties faced by his legal advisers in seeing and advising him. During the course of the voir dire he declined to answer questions about the ricin issue. In the result, the judge admitted the evidence of the interviews before the jury.

20. The evidence about events on 14th January required the jury to consider the circumstances in which this defendant came to inflict a total of fourteen stab wounds on four police officers, in the course of his efforts to escape from the police, and so determined to escape that before any officer showed any violence at all he (a) punched one officer in the groin (b) armed himself with a knife (c) motioned with the knife in front of him, and who, when the incident was finally over, although vastly outnumbered, suffered no significant injuries himself. At the close of the prosecution case, when he had an opportunity to explain such fear as there may have been in his mind, and any anxieties about what might happen to him, and why he acted as he did, he elected not to give evidence. That however lay in the future. It was not suggested that when Penry-Davey J gave his ruling that some of the ricin material should be admitted, he should have anticipated this decision by the appellant.

21. In the course of the subsequent conspiracy trial, the appellant did give evidence. In his skeleton argument Mr Nigel Sweeney QC on behalf of the prosecution referred to this evidence in the context of the finds made at Wood Green. In our view, in the context of the arguments considered in the present appeal, it was unnecessary to consider this material, and we declined to do so.

22. The death of DC Oake led to separate police enquiries by the West Midlands and Merseyside Constabularies, and the involvement of the Health and Safety Executive. At trial a wholesale attack was mounted by the defence against police mismanagement of the entire operation. Criticism was directed at the officer in charge of the operation, DCI Simon. In addition, the fact of police disciplinary proceedings against two further officers, PC Fleming and PC Saeed, unconnected with events on 14th January, was disclosed. Between them, these enquiries generated and led to the subsequent disclosure of a massive body of written material arising out of the police operation. Before the hearing of the appeal, we were shown the very limited material which, in the judge’s view properly attracted PII immunity from disclosure. We could not find anything then, nor in the course of the hearing itself, to suggest that the judge’s ruling had deprived the appellant of any material additional to the vast amount already made available which might have assisted his defence or helped to refute the prosecution case.

23. There is no doubt, and the Crown accepted, that many of the criticisms of the police operation were justified. It might, however, be wondered how what the perfected grounds of appeal describes as “abject mismanagement and ineptitude” by the police was of direct relevance to the question whether the appellant, who was undoubtedly responsible for the injuries sustained by the police officers, was or may have been acting in reasonable self defence. The contention was that the death of DC Oake, and the injuries sustained by the other officers, would not have occurred if the operation had been properly conducted, and that the appellant’s actions were, to use Mr Massih’s word, “triggered” by the behaviour of the police. In summary, it was suggested that this investigation at trial was justified on the basis that some of the police officers who gave evidence had a reason to or were covering up their incompetence or misconduct. It was alleged that the appellant was the victim of perjured and concocted evidence and a conspiracy by some officers, including the officer in charge of the operation on 14th January, to pervert the course of public justice.

24. We understand why a close examination of police evidence was justified, and as part of that examination, why exposure of inconsistencies by individual officers about their own roles, or between different officers giving evidence adverse to the appellant’s case was appropriate. Nevertheless, this trial was not, and certainly was not intended to be, an enquiry into the police management of the operation, nor in effect, a re-examination of the enquiries conducted by the West Midlands and Merseyside Constabularies and the Health and Safety Executive. In the result, notwithstanding the stark and undisputed fact that the appellant had killed DC Oake, and wounded his colleagues, the deployment of this material contributed significantly to the eleven weeks taken to complete this trial on charges arising from an incident which was over in a matter of minutes.

The appeal

25. We can now return to the single ground on which leave to appeal has been given. It concerns the admissibility of evidence relating to the ricin material found at 352b High Road Wood Green, and the relevant parts of the interviews with the appellant on this topic, including his association with that address and his whereabouts between 5th January and 14th January.

26. Mr Massih QC submitted to Penry-Davey J that every aspect of the ricin conspiracy was inadmissible. Alternatively, it should have been excluded on the basis that its prejudicial effect would outweigh any probative value, and adversely affect the fairness of the proceedings: in short, s 78 of the Police and Criminal Evidence Act 1984 and common law submission.

27. It was, in effect, common ground that the appellant was determined to escape from the police. That was why he was violent, and then armed himself with a kitchen knife. He realised that he could not escape from a window, and that in any event if he tried to do so he would be caught. So he picked up the knife to frighten the police into scattering away, leaving him a route out of the flat.

28. The Crown’s case was that evidence of the findings at the flat at Wood Green, and the defendant’s connection with them helped to explain why he was so determined to escape from the police, and ultimately to use the knife to inflict serious injury. This formed an essential part of the background to the case which enabled the jury to consider why the appellant intended to escape from the police, at virtually any price, and helped to refute the suggestion that he may have been acting in reasonable self defence.

29. The judge concluded that it would be “unreal … for the jury to be expected to consider the question of self defence and intent in this case with only the evidence of the events in the Manchester house on 14th January 2003 and the defendant’s allegation that in seizing and using the knife he was acting in self defence out of fear for his life and the police and without any intention to kill or to cause serious harm. The evidence as to his involvement with and explanation for the significant Wood Green items is highly material to and probative of his motive for seeking to escape and his intention in seizing and using the knife”.

30. On the appeal, Mr Massih in effect repeated his submission that this evidence was neither relevant nor necessary. He submitted that given that the ricin material provided evidence of criminal conduct on the appellant’s behalf, to be analysed by a different jury in due course, it was only admissible if it was “necessary” for the jury to consider it as part of a continuous background of history relevant to the offences being considered by the jury, and if the material before the jury would be incomplete or incomprehensible without it.

31. He suggested that the relevant material was to be found in Flat 4, or 4 Crumpsall Lane itself. The credibility of the police officers was the critical issue at trial. If it was accepted by the jury then there was ample evidence to justify a conviction. Therefore it was not “necessary” for the ricin material to be admitted. Mr Massih however accepted that some matters of background would be relevant, for example, the warrants explained why the police were present at Flat 4, and indeed that it would be relevant to admit evidence that the appellant was a failed asylum seeker. However the ricin material did not form part of that admissible background. At one stage in his submission he suggested that all the blame for the incident, and its consequences, should be attributed to the police. Quite apart from the incompetence of the management of the operation, he submitted that the critical moment or triggering event, in the incident occurred when the light in the bedroom was turned off by the police, when according to his submission the number of police officers, and their intimidating manner, and in some cases the uniform dress they were wearing, led, or would have led, or might have led the appellant to realise that the odds were stacked strongly against him. The sequence of events demonstrated that he may reasonably have believed that he was under attack, with possible fatal consequences to him. By the end of his argument, as we understood it, Mr Massih was suggesting that before the ricin material could be admitted, the Crown had to prove that DC Oake was killed to enable the appellant effect his escape, rather than in self defence as advanced on the appellant’s behalf before the jury.

32. As we observed during the course of the hearing, much of what Mr Massih was submitting sounded like a forensic address to the jury. However he was adamant that provided the detailed sequence of events was kept in mind, the conclusion that the ricin material should be admitted was demonstrably wrong.

33. In his written argument, as already noted, Mr Massih drew attention to a large number of authorities. He contended that the ricin evidence was not needed to enable the jury to deal with the issues of self defence and intent. He suggested that the court should be extremely careful not to allow evidence of this kind to be “smuggled in” under the guise of “motive”. He drew attention to reports from the Law Commission culminating in Law Commission Report 273 which suggested:

“… Leave should not be given unless the evidence has substantial explanatory value. The court must be satisfied that, without the evidence, the court or jury would find it impossible or difficult properly to understand other evidence in the case and that its value for understanding the case as a whole is substantial …”

34. In the result, Mr Massih suggests that this Court should “overhaul” the law relating to the admissibility of evidence of this kind as background evidence or evidence of motive.

35. A linked complaint is that the evidence should have been excluded because the defence had had insufficient time and facilities to prepare for trial. We were invited to consider some of the difficulties faced by the defence having access to the appellant in the period immediately after his arrest, and later as the case unfolded.

36. We do not minimise the difficulties of access, not least given the level of security which was deemed appropriate for the appellant when he was interviewed about the ricin material, in the presence of his solicitor in January 2003. A summary of those interviews was served in May, together with full transcripts by 31st July. An updated and detailed case summary was served at the end of October 2003. Oral notice was given on 10th November 2003 that the prosecution intended to deploy the ricin evidence in the course of the murder trial.

37. The murder trial was originally fixed for 10th January 2004, and subsequently 23rd February 2004, when it was broken on the basis of an application on behalf the appellant that more time was needed for preparation, and then refixed for 22nd March, when it was again broken at the appellant’s request, and eventually refixed for trial on 19th April 2004. The ruling on the admissibility of the ricin material was given on 23rd March. Following the ruling itself, an application was made for a further adjournment on the basis that Mr Massih needed much more time, indeed substantially more time. That is why the start of the trial was again postponed until 19th April.

38. We cannot find any basis for concluding that the appellant did not have a sufficient opportunity to discuss the issues arising in this case, and indeed those parts of the ricin material which were relevant to it, to enable his instructions to be given and his defence properly to be prepared. No s 78 point arising from the difficulties of access and contact between the appellant and his legal advisers is established. We must therefore return to the fundamental question of the admissibility of this material. Despite Mr Massih’s huge endeavours, and notwithstanding the amplitude of his written and oral submissions, the evidential issue on which leave to appeal was granted can be dealt with briefly.

39. In our judgment it is neither necessary nor appropriate either to “overhaul” the law, as Mr Massih suggested, nor indeed to attempt any restatement of well-understood principles. The first question was whether the ricin material was relevant to the issues under consideration in this trial, and in particular to enable the jury properly to evaluate whether the appellant was or may have been acting in self defence. Everyone agreed that the appellant was determined, indeed desperate, to escape from the police, so desperate that he took the first violent action, and then armed himself with a knife intending to frighten the police away, thus opening up a free route to enable him to escape. The ricin material served to explain why the appellant was, as the Crown alleged, and indeed on any view, resolutely determined to avoid being associated with or arrested in connection with the ricin material, to the extent of wounding four men, one fatally, before he was overpowered. That was wholly inconsistent with self defence, and the absence of the appropriate intention. Indeed it would have tended to confirm why he was, as the Crown alleged, the aggressor. It therefore provided evidence which assisted the Crown to refute the defence.

40. Without knowledge of the ricin material, the jury would have been left to puzzle whether there was any possible reason for the appellant to have displayed violence before any violence was shown or offered to him, and then to have behaved as he violently as he did. Without it indeed, the jury would have been left speculating about, and perhaps wondering whether the appellant was, or could have been as committed to escape as the Crown alleged, and pondering why on earth he should wish, single-handedly, to “take on” a large number of police officers unless, rightly or wrongly, he was fearful that they might do him serious injury. Accordingly in our judgment the ricin material was directly relevant to the issues being decided by the jury, enabling them to consider evidence rather than indulge in what would have been uninformed speculation about why the appellant behaved in the desperate fashion he did. Accordingly, subject to the judge’s overriding discretion to ensure the fairness of the proceedings, it was rightly admitted.

41. We do not accept the argument implicit in the submission on behalf of the appellant that the only way in which the judge could ensure the fairness of the proceedings required him to exercise his discretion to exclude the ricin evidence. Just because it was probative of the Crown’s case, the ricin evidence was plainly prejudicial to the appellant but the mere fact that it served to make a strong case stronger, did not affect its admissibility. We acknowledge Mr Massih’s concern about what he described as the spirit of the times, and deep public concern about the risk of mass murder by a terrorist or terrorists. Nevertheless, we cannot see any basis for interfering with the discretionary element of the decision to admit the ricin material. What was required was that the jury should not misuse it.

42. When counsel for the Crown opened the case to the jury, he explained something of the findings in the flat at Wood Green. According to an agreed note supplied to us after the conclusion of the oral argument, counsel said:

“Whilst the police did not know that at the time, the defendant obviously knew that he wrote the recipes and their self-evident context, and that he had handled numerous items connected with the recipes. If caught, whether innocent or guilty, he was going to be in very serious trouble. It is important that you should note that you are not here to decide whether he is guilty in relation to what was found … that would be for another jury dealing with other charges in due course. The purpose of the evidence is not for you to decide that. The purpose of you hearing some evidence about what was found, and the defendant’s connection with it, is because it goes to the suggestion (given that he wrote these recipes, given that the fingerprints demonstrate that he handled so many significant items, and given the amount of publicity about the raid) that on 14th January the defendant knew only too well how closely connected he was and therefore how much trouble he was going to be in — therefore it is capable of going to part of the motive for attempting to escape, and the desire to kill to effect that escape.”

This was the essential theme.

43. Counsel for the defence was permitted to make an opening speech. He told the jury:

“Bear in mind that a great amount of what has been said will affect you negatively. He is innocent until proven guilty. Bourgass faces another trial regarding the Wood Green findings. Another jury will decide that. Kamel Bourgass will be pleading not guilty on that charge. Please concentrate on the events of this case, the events in the flat … When analysed properly the facts show that Bourgass did not intend to harm anyone, and grabbed the knife in order to escape.”

44. At the end of the evidence, when counsel for the Crown addressed the jury in his closing speech, he said:

“The defence contention in their opening speech that this material is irrelevant is simply and bluntly wrong. Equally however, it is important that you bear in mind that, as I said in opening, you are not considering the defendant’s guilt or innocence of crime in relation to these items, another jury will consider that in due course. But what you are entitled to consider is the strength of the defendant’s connection and whether avoiding the potential consequences of that strength, as he must have believed them to be, was what motivated him, in whole or in part, to escape and to kill if that is what it took.”

Later in his closing speech, counsel pointed out:

“The fact that he sought throughout the interviews about Wood Green to lie, and to lie fluently, about his connection with the materials is, we suggest for your consideration, simply doing in words what he sought to do in deeds by trying to escape in Manchester … namely avoid what he obviously believed would be the consequences of the discovery by the authorities of the full extent of his connection with these materials.”

45. Counsel for the defence closed his case by arguing strongly that the evidence from Wood Green was irrelevant and that the jury should concentrate on evidence from the flat alone, although the defendant’s lies in interview were relied on positively as providing support for his case about his state of mind in the flat. He submitted that there was:

“… a wall of prejudice. Concentrate on the hard facts. A separate jury in a separate trial will deal with the recipes. You must not try him now for the Wood Green offences … Another jury will try the conspiracy matters. Put aside the material that is highly prejudicial and totally irrelevant … Whatever the legal basis for putting the material in front of you, it is material that cannot begin to assist you as to what was in Bourgass’s mind at the time.”

46. When the judge came to sum up the case he directed the jury to approach their deliberations in a dispassionate, unemotional way. He addressed the possible significance of the finds made at Wood Green at the very outset by explaining its possible relevance, first by reference to the basis on which the prosecution relied on those findings, specifically as relevant to the defendant’s determination to escape from Crumpsall Lane, and then by emphasising the defence contention that the findings were “irrelevant” and a “distraction”, and that the defence was asking the jury to focus on events at Crumpsall Lane. In effect he reminded the jury of what had been said twice on each side about the possible relevance of the evidence. He then twice directed the jury that they should approach the ricin evidence cautiously, and by way of direction himself confirmed what they had already been told by counsel, that even if they were to conclude that this ricin evidence may have connected the appellant with serious offences, it did not follow that he was guilty of the offences which they were considering. Taking one passage from the summing up, we find the judge saying:

“You must approach the Wood Green evidence with care. Even if you were to conclude that the defendant had very close connections with the items found at the flat at Wood Green, the fact that he may have committed other serious offences in relation to the Wood Green findings does not, of course, mean that he is guilty of the offences charged in the indictment … Please be careful not to approach it on the basis that if you conclude that he may have committed offences in relation to the Wood Green materials, then he is necessarily guilty of the offences on this indictment.”

47. We have carefully examined all the material bearing on this topic. We are satisfied that the jury was sufficiently directed and would have fully understood the true relevance of the ricin material. There is no danger that they would have attached improper significance to it, or indulged in what the late Sir John Smith aptly described as “prohibited reasoning”.

48. In this context, Mr Massih advanced a further complaint arising from the consequence of admitting the ricin material. Notwithstanding Mr Massih’s strenuous efforts, part of the interviews between the police and the appellant relating to this material were also admitted. Mr Massih complained that the interviewing officers proceeded on the erroneous basis that ricin had actually been found at Wood Green. As a matter of fact the complaint was justified, but it is not suggested that the interviewing officers were dishonest or corrupt: they relied on mistaken information given to them. However the fact of the error was made known to the jury. As the judge reminded them, subsequent tests of the white powdery material found on the pestle and mortar showed that there were no traces of ricin. In other words the bad point put to the appellant in interview was exposed for what it was.

49. Mr Massih also complained about the way in which the judge approached the issue of lies told by his client during the interviews about the ricin material. The Crown submitted to the judge that this evidence served to demonstrate how very closely the defendant was to the ricin material, and his own appreciation of its potential seriousness. In other words the interviews themselves produced material from which the jury could reasonably infer that the Crown’s explanation for the defendant’s determination to make good his escape was not self defence, but a realisation of the profoundly serious situation in which he found himself. Logically therefore this interview evidence was admitted on the same basis as the evidence of the findings at Wood Green. The Crown was prepared to proceed by way of a summary of the relevant parts of the interviews, but on behalf of the defence, it was thought appropriate to use some of the detail of the interviews, as well as the circumstances in which they took place, to further the suggestion that the defendant’s answers were given as a result of oppression and fear. Indeed, in the result, Mr Massih’s submission to the jury was that his client lied “like a trooper”, and, without any supporting evidence from him, Mr Massih described some of the answers given by the defendant as “farcical” and “unbelievable”. He sought to explain the lies as arising from fear following events at the flat, and consequent on the appalling conditions under which the appellant was being kept in custody, the fear that the conditions might get worse, and also that he might wrongly be linked with chemical warfare.

50. The judge gave what we shall describe as a Lucas direction about the approach to be adopted by the jury if they found that the appellant had deliberately lied in interview. He HHhHereminded them of the first of Mr Massih’s contentions that there was an “innocent” explanation for them. He concluded by directing the jury that it was only if they were sure that there was no innocent reason for deliberate lies that they could be treated as “evidence supporting the prosecution case”. He returned to the issue at the end of his summing up to remind the jury of the contention that the appellant may have lied to avoid being wrongly linked with chemical warfare. The judge repeated his directions about the possible significance of deliberate lies made without “any innocent reason”.

51. The explanations given by the appellant in interviews about the ricin material were relevant to establish that he was linked to it, and something of the nature and extent of the link, and therefore to confirm the Crown’s suggestion about the reason for the desperate desire by the appellant to escape. The fact that he told lies was properly before the jury. If no Lucas direction had been given, Mr Massih would, we are sure, have asked the judge to give one: that after all was the basis for his submission that the jury could not exclude a possible innocent explanation for the lies. If the defendant did lie deliberately, and there was no innocent explanation, then his answers and the fact of his lies provided evidence of some significance to his link, and his understanding of the importance of his link to the ricin material, and therefore to his true motive for his actions.

52. Finally, dealing with a yet further criticism by Mr Massih, when the judge spoke of the possibility that the jury might conclude that the evidence of deliberate lies might provide support for the prosecution case, no-one could possibly have understood his observations as directed to anything other than the prosecution case that the appellant was not acting in self defence and deliberately used violence to effect his escape. That was the only case before the jury.

53. Mr Massih further sought to raise a concern about the admissibility of the ricin material on the basis that his client had not been convicted of any offence in relation to it. He was, as Mr Massih put it in a late skeleton argument dated 16th May 2005, “awaiting trial”. As we have explained, it was decided that the murder and connected trial should be severed from the ricin conspiracy trial, and that the murder trial should be taken first. The submission that the ricin evidence was inadmissible until after guilt of the ricin conspiracy had been proved is unsustainable. The material was not admitted to prove guilt of the ricin conspiracy, but to disprove self defence in the murder trial. The mere fact that the evidence tended to suggest the commission of other crimes which were themselves unproved did not render it inadmissible. This follows from Makin v Attorney General for New South Wales (1894) AC 57 , and confirmed in the House of Lords in DPP v Boardman [1975] AC 421 and R v Z [2000] 2 AC 483 , and exemplified in its practical application in numerous authorities in the Court of Appeal, usually collected under the rubric of similar fact evidence.

54. It is unnecessary for us to deal with any of the further matters raised in support of the argument that the ricin material should not have been admitted. We have examined them all. In our judgment the evidence was rightly admitted, and we can find nothing in the remaining arguments associated with this ground of appeal which undermines the safety of the conviction.

Renewed, and further grounds of appeal

55. A number of other points were taken on the appellant’s behalf at different stages in the appeal process. It was suggested that the judge had erred in refusing to disclose material relating to police enquiries into the death of DC Oake. Mr Massih suggested that he was entitled to see the relevant reports. In fact all relevant material on which the reports were based was provided to the defence. As the single judge observed, the reports themselves, as opposed to the material in which they were based provided no more than evidence of the conclusions reached by those who conducted the investigations. Having read the reports, the single judge could see no basis for concluding that the judge’s ruling was wrong. We agree.

56. In a connected ground of appeal it was suggested that the prosecution wrongly introduced to the jury in the course of the opening speech that two police enquiries and a further enquiry by the Health and Safety Executive had taken place in which all the officers save one had been “cleared” by the investigation. This ground, as pleaded, did not however tell the full story. Counsel for the Crown appreciated that a defence onslaught on the conduct of the police operation would be mounted. All the relevant material from the investigations had been disclosed. He felt, and we agree, that the background issues had to be opened to the jury, and in the course of his opening, Mr Nigel Sweeney QC told the jury of a number of “shortcomings in the planning and briefing process”, which he then identified in detail. He also told the jury of the decision by Greater Manchester Police that the officer in charge would be prosecuted for his conduct of the operation, and that another police officer who participated at Crumpsall Lane, had been dismissed from the force. That was the context in which he told the jury that neither Greater Manchester Police nor any officer would be prosecuted for any criminal offence. He emphasised both in his opening, and more emphatically in his closing speech, that the fact that no prosecutions for any criminal offence would follow did not bind the jury to any view of the facts of the case. In our view given the anticipated line of defence, it was legitimate for the Crown to open the relevant facts in this way, and then repeat the point at the end of the case. Moreover, by doing so, Mr Sweeney did not make the reports themselves disclosable.

57. If there was an element of surprise in Mr Sweeney’s opening, an application could have been made for an adjournment. In any event, however, on the assumption that Mr Sweeney should not have opened this material to the jury, nor indeed referred to it in his closing speech, the areas of criticism about individual police officers and the police operation as a whole were fully and indeed exhaustively examined before the jury, and even if Mr Sweeney was in error (and we are satisfied that he was not), the safety of these convictions would have been unaffected.

58. It was further argued on the papers that the judge erred when directing the jury about the circumstances in which an adverse inference could be drawn from the appellant’s refusal to submit to questioning about his prepared statement during the course of the attempt to interview him on 16th January 2003. Reliance was placed on R v Knight [2004] 1 WLR 340 . As the single judge observed, Knight had set out his case fully in his prepared statement, and did not depart from it at trial. Therefore no inference could be drawn from Knight’s failure to answer further questions. In the course of the present trial, the case advanced on the appellant’s behalf in cross-examination of police witnesses about the sequence of events in Crumpsall Lane relied on facts which had never been mentioned in the prepared statement. At that time the police were entitled to ask further questions of the appellant to clarify matters which were left uncertain in the prepared statement, and to investigate the matter in greater detail. In the result, the appellant declined to answer any questions, and then, later in the case, in cross-examination issues of major importance were then raised. The judge’s direction was unassailable.

59. We must next examine a complaint about the limitations which the judge imposed on cross-examination of two police witnesses, PC Fleming and PC Saeed. The disclosure made by the Crown included material relating to police disciplinary proceedings prior to 14th January 2003 against them. In December 2001 an official complaint was made by a Mr Hanif that PC Fleming had been racially abusive, aggressive and had threatened violence to Mr Hanif and his wife. The complaint was investigated and the investigating officer found that it was unsubstantiated and reported to the Police Complaints Authority accordingly. Subsequently the Authority concluded that there was insufficient evidence to justify misconduct proceedings against any officer. Documents, including the statements taken during the investigation, were disclosed to the defence, but, as we have noted, the report of the investigating officer of the Authority was withheld on public interest immunity grounds. PC Saeed’s conduct had given rise to two sets of disciplinary proceedings. One in connection with an assault on his wife, the other arising from a driving incident, when it was also alleged that he had used racial abuse against the other driver. This second complaint was investigated and found proved. That is why he was required to resign from the police. However, the tribunal found that the racist element of the misconduct had not been proved. Again all the underlying material in relation to these complaints was disclosed to the defence.

60. The principal plank in the appellant’s case that he was acting in self-defence, as advanced by counsel, arose from an allegation that PC Fleming had been aggressive and racist to him and caused the appellant to be in fear for his life. There was nothing in the prepared case statement or the defence case to support an individual case against PC Fleming that he had indeed been aggressive or racist, and so far as the two documents were concerned, nothing that PC Fleming had allegedly done could be possibly have formed the basis for a case of self defence. However, by the time the matter came on for trial, and largely based on statements from police officers, there was sufficient material for the defence to suggest not only disparities between the evidence of PC Fleming and other officers, but also limited support for the contention that PC Fleming’s conduct could have been perceived by the appellant as threatening and aggressive. The only support for a racist element in his conduct was something to the effect that it had been said, we shall assume by PC Fleming, that “their police wouldn’t be as tolerant as we are”.

61. An application was made for permission to cross-examine PC Fleming in connection with Mr Hanif’s complaint, and to adduce the Hanif material before the jury. In addition, the defence sought disclosure of the investigating officer’s report. The judge analysed the principles on the basis of a number of authorities, including R v Edwards [1991] 2 WLR 207 and a line of subsequent cases following it, in particular, R v Wheelan [1997] Crim LR 353 CA , R v Guny [1998] 2 Cr Ap R 242 and R v Twitchell [2001] Cr Ap R 373 , and so far as propensity was concerned, R v Z [2000] 2 AC 483 . He permitted cross-examination about the interview of PC Fleming arising from the allegations made by Hanif on the basis that there was sufficient similarity between the very broad allegations made by him, and those said to have arisen on 14th January. However he declined the application to permit the Hanif material as a whole to be put before the jury, and refused disclosure of the investigating officer’s report. His decision was criticised before us, in effect, on the basis that the material which the judge excluded went to PC Fleming’s credit, and also indicated a particular propensity in him to be abusive, racist and aggressive.

62. Despite the detailed citation of the authorities, and specific conclusions reached in different cases where similar points arose, we remain unpersuaded that the judge erred in his decisions in relation to the Hanif material, and its proper deployment on the appellant’s behalf at trial. Mr Massih has not been able to identify any particular feature of this case which establishes that there was a need for the jury to become involved in resolving all the issues which they would have been required to consider if they had to decide whether the conclusion of the investigating officer was correct, or not. When reaching his decision, the judge was entitled to bear in mind that the allegation against PC Fleming was unproved, that the complaint against him was not substantiated, and that proceedings against him for misconduct were not taken. To the extent that the complaint included matters which might be relevant to the shadowy allegations of racism and self defence, a degree of cross-examination was permitted. It would have been unfairly prejudicial for the judge to have allowed a detailed investigation of Mr Hanif’s unproved allegations which, according to their tenor, were explicitly more serious than anything alleged by the appellant. It would have been oppressive and unnecessary to have made them the subject of inquiry and resolution by the jury on the ground that they were relevant to credit. In so far as they were relevant because there was a factual similarity, the judge properly assessed the degree of similarity and allowed for it by the limited order he made.

63. We must now address the conduct of PC Saeed. The judge decided that the defence should be permitted to adduce the material upon which PC Saeed had been found guilty of misconduct. He did however exclude the elements of racism comprised in the original complaint arising from the driving incident, as this element of the allegation was not proved. It was in any event not suggested that PC Saeed himself had been racist to the appellant, but, rather it was asserted that a culture of racism/Islam-phobia existed within the Tactical Aid Unit (the TAU) of the Greater Manchester Police. The judge permitted the defence to put to PC Saeed that a culture of racism existed within the Greater Manchester Police, and indeed he accepted that this allegation was true, but denied personal participation in it.

64. On analysis, we have found it very difficult to see the basis upon which it could be said that an investigation as to whether PC Saeed had behaved in a racist way in the context of the driving incident could add anything to either the general allegation against the Greater Manchester Police or, save possibly to PC Saeed’s credit, any issue in the case.

65. The Perfected Grounds of Appeal, advisedly, do not attempt to put the matter on the basis of credit, but seek to apply the reverse similar fact principle to the question:

“… that material was properly admissible as similar fact evidence vis-à-vis PC Fleming (and vice versa) so as to show a course of conduct, namely the existence of a culture of thuggery and racism/Islam phobia with the TAU of the GMP, and the enthusiastic manner in which officers on this case were prepared to lend themselves to that culture” (paragraph 142 Perfected Grounds of Appeal).

66. In our judgment, an allegation of racist behaviour made against PC Saeed could not, by the application of the similar fact principle, support an allegation of racism by PC Fleming in connection with the incident on 14th January. In truth, as the last lines of paragraph 142 recognise, the purpose in seeking to introduce the material was to lead the jury to accept that all the officers at Crumpsall Lane were racist. The proposed course was objectionable, and there is no merit in the complaint that the judge did not permit it to be taken.

67. In the result we can find nothing in the judge’s decision to limit the extent of cross-examination of these two officers in the way that he did which serves to undermine the safety of the convictions.

68. The final point raised shortly before the hearing of the appeal arose from a newspaper article dated 9th May 2005, under the headline “I was tortured says ricin plotter”, asserting that an informant who revealed “an Al-Qaeda plot to make a deadly ricin poison in Britain is claiming that he was tortured before admitting his role in the conspiracy”. The informant in question was identified as Mohammed Meguerba. He had been arrested in London and fled the country, returning to Algeria where he was allegedly tortured. As a result of torture, he made a long “confession” which, according to the article eventually led police officers to the flat in Wood Green where the ricin material was discovered.

69. The way in which Meguerba is said to have been relevant to the issues in the present case is that the disclosure made by the prosecution revealed a history which “could, arguably, suggest that Meguerba was an agent provocateur acting on behalf of the Algerian government in Algerian circles abroad. Alternatively the material suggested that he may have been tortured by the Algerian authorities”. The material was then said “arguably” to lend “significant credence to the appellant’s account in the ricin trial that contra his account in interview, much of the incriminating material in the Wood Green flat was attributable to Meguerba”. It was also pointed out that “attempts to get fuller disclosure about Meguerba during the murder trial failed”. This is remarkably tenuous to anything which the jury was considering in the context of a killing which occurred when on any view Meguerba was not present.

70. When Mr Massih made an application to Judge LJ sitting on his own on 13th May 2005, seeking an adjournment, he added to the information found in the newspaper article. That material is available in transcript form, and needs no repetition here.

71. The application for an adjournment was refused. It was left open to Mr Massih to argue before the full constitution that if the appeal against conviction on all the other grounds failed, he should then be entitled, if he saw fit, to make a brief submission that the final decision in the appeal should be adjourned for further investigations to take place. In the result, although some submissions relating to Meguerba were made during the course of the hearing, no further application for an adjournment was made. After the hearing we asked Mr Massih to send any further written submissions on this topic for us to consider and he invited us to adjourn the appeal until Meguerba’s position was clarified. We re-examined the evidence. We cannot discern the remotest possible relevance to this conviction of anything which could be said by Meguerba, who was nowhere near the place where and can know nothing of the circumstances in which DC Oake met his death at the hands of this appellant.

72. Nothing in the single ground of appeal which we have examined in such detail as is necessary, nor in the remaining renewed and additional grounds of appeal, serves to undermine our conclusion that these convictions are safe. Accordingly the appeal is dismissed.