Regina v Kamel Bourgass

No Substantial Judicial Treatment

Court

Court of Appeal (Criminal Division)

Judgment Date

19 December 2006

No: 200502499/c3

Court of Appeal Criminal Division

[2006] EWCA Crim 3397, 2006 WL 4017706

Before: Lord Justice Latham ( The Vice President of the Court of Appeal Criminal Division ) Mr Justice Mitting Mr Justice Teare

Tuesday, 19th December 2006

Representation

Mr M Massey QC and Mr O Osman appeared on behalf of the Appellant.

Mr N Sweeney QC and Mr M Dennis QC appeared on behalf of the Crown.

Judgment

The Vice President:

1. On 8th April 2005 at the Central Criminal Court following a lengthy trial this appellant was convicted of conspiracy to cause a public nuisance. That was count 2 in an indictment which contained as count 1 conspiracy to murder. The jury were unable to agree a verdict on that count; and the count was ordered to remain on the file on the usual terms.

2. On 15th April 2005 the appellant was sentenced to 17 years’ imprisonment. That sentence was ordered to run concurrently to a sentence of life imprisonment with a minimum term of 20 years being served by the appellant following his conviction for the murder of a police officer, but consecutively to two concurrent terms of 15 years’ imprisonment he was serving following convictions on two counts of attempted murder of two Special Branch officers. Those offences arose out of the circumstances surrounding the offences with which we are concerned today.

3. The appellant was tried together with four co-accused who were acquitted on both counts of the indictment.

4. He appeals against his sentence with the leave of Dobbs J. We shall return to that appeal after we have dealt with the application for leave to appeal against conviction which he renews before us today after refusal by Dobbs J.

5. The circumstances out of which the indictment with which we are concerned arose are notorious. On 3rd January 2003, acting upon intelligence, which was intelligence from Algeria resulting from statements made by a man called Meguerba who figures in the story, the police raided the appellant’s address at flat 352B High Road, Wood Green. The search resulted in a significant number of items being discovered which the prosecution submitted could only have been intended for terrorist use. The items included a locked holdall containing an envelope in which £4,000 in money was found, handwritten recipes for the manufacture of the poisons ricin and cyanide, and designs for explosive devices.

6. Ingredients for the making of those poisons in accordance with the recipes were found, including acetone, castor beans and other material. Further, there were apple seeds and cherry seeds which figure as constituent ingredients in the recipes for cyanide. Other poisonous substances were found; the potential ingredients for poisons described in a recipe, for example, of cigarette and potato poison and rotten meat poison. These substances were, it was subsequently said, capable — although with some difficulty and needing some skill if they were to be capable of producing poison safely — of producing those poisons.

7. There were items of equipment in the flat which could have been used for the purpose of making those poisons, including, a pestle and mortar. In addition, and of great significance, various electrical items were found, together with electrical diagrams, which the prosecution alleged outlined the wiring of a sophisticated detonator.

8. Not only were those items all found in the appellant’s flat, but his fingerprints were found on bottles, the envelope containing the recipes, the £4,000 in money, the recipes themselves, the detonator diagrams and the pestle and mortar and other items in the flat.

9. The recipes had been seen by the police before. They had been discovered by the police on a search of an address in Norfolk in September 2002. The recipes found in Norfolk were said to have been direct copies of the recipes found in the appellant’s flat. The recipes in Norfolk were found to have the appellant’s fingerprints on them.

10. On 14th January 2003 another search was carried out by Special Branch officers at an address in Manchester. It was there that the appellant was found and eventually arrested. He had on him a coach ticket for return travel between London and Bournemouth. It would appear that he had travelled to Bournemouth at or about the time of the search of his flat in London and then travelled from Bournemouth to Manchester. The prosecution case was that once he had appreciated that the flat in London had been searched by the police he fled, first of all, to Bournemouth and then ultimately to Manchester.

11. Later, in January 2003, after he had been arrested, the police raided the Finsbury Park Mosque. Items were discovered there to connect the appellant to the mosque, including a photograph of him which was inside a zip-up Koran found at the mosque. Expert evidence revealed that the photocopier at the mosque had been used to produce the various copies of the handwritten recipes found at the applicant’s flat in London and the address in Norfolk.

12. The appellant was interviewed after his arrest on 19 separate occasions during the course of January. The account that he then gave was that he had arrived in the United Kingdom on 30th January 2000 and claimed asylum, using the name Nadir Habra, on the basis that he was an Algerian who had a well-founded fear of persecution in Algeria were he to be returned there. The name Nadir was one of the many names which were used by the appellant in the period between January 2000 and 2003.

13. His account as to how it came about that he had the items that we have described in his flat was that he had worked, he said, as a dustman during the period that he had been in the United Kingdom and that during the course of his work as a dustman he had found a number of the items which were in his flat. He said, for example, as far as the recipes were concerned, that he had found these in a bag in Brixton in September 2003. He had kept them because he was stupid, wanted to throw them away but had not got round to doing so. As far as the items such as the beans, the jars of liquid which could be used for the production of poisons, the wires, the batteries and other items, he said that they also were items that he had collected during the course of the time that he was a dustman and had retained them. He denied that he had used any of them. He did, however, admit that he had used the pestle and mortar.

14. It should be said at this stage that the pestle and mortar had been subjected to examination; and the first examination, or examinations, had proved positive for ricin, although it was known that false positives could in fact be produced by the form of tests which were used in the first instance. At the time of the interviews the fact that there was that positive finding had become common knowledge, was indeed spread across the newspapers and was asserted by the police during the course of their interviews of the applicant. It subsequently transpired that the tests had produced a false positive, that there was no conclusive evidence that ricin had been produced by use of or in conjunction with the pestle and mortar. The police, it should be said, at that stage, honestly believed that there had been a positive finding; and, as we understand it, after evidence had been called at the trial in this respect, it was accepted on behalf of the appellant that the police had not been informed at any relevant stage that the subsequent examinations had proved negative.

15. The appellant’s account during the interview period was simply this. The items were items that he had found. They were not items he was intending to use. He had kept them because “he was stupid and not clever”. There were, however, some items which he said he might have used. The apple pips were a constituent ingredient of a stomach medicine, he said, which could be made, ground together with sugar, for stomach trouble; and the cherry stones which were capable of being a constituent of cyanide, were in fact also capable of being used to make a drink in accordance with an Algerian recipe.

16. There is no need for the purposes of this judgment to go into further detail about the poisonous substances which were found in the premises. Suffice it to say, for the moment, his account was that he had come by those items adventitiously and had no intention of using them for nefarious purposes. The same account was given by him in relation to the circuit diagrams and the electrical equipment.

17. He accepted that he had been to the Finsbury Park Mosque; but he denied that it was a place that he had used; he had no knowledge of the zip-up Koran and had certainly not been party to the photocopying of the recipes. He explained that as far as his visits to Bournemouth and then to Manchester were concerned, they were merely to visit friends. He accepted that he had used different names at different times.

18. That was the state of affairs at the time that the trial commenced. He maintained his position in interview. No defence statement was served at any stage prior to the commencement of the trial. The only account which was available to the prosecution or any other parties, including the court, was the account that he had given in interview.

19. At the trial itself, however, he completely changed his account, but not until he went into the witness box. He then said that his real name was Nadir Habra. He was Algerian. He had been a police officer in Algeria between 1995 and 1996. He had made an unsuccessful application for asylum. He accepted that the basis upon which he had claimed asylum was false. He accepted that he had in fact for a time stayed at the Finsbury Park Mosque. He had, indeed, been employed as a street cleaner, but later he supported himself by stealing clothing from shops and then selling it.

20. He met a man called Meguerba in spring 2002. Meguerba was, by January 2003, known to the police to have been an acquaintance of the appellant; and, indeed, he was implicated in the property in the appellant’s flat because his fingerprints were found on a number of the items there.

21. The appellant said that he had met Meguerba whilst selling clothes and they struck up a relationship. They were both Algerians and so conversation turned to Algeria and conditions in Algeria. According to the appellant, Meguerba told him that Meguerba’s village in Algeria had been subject to attacks by bandit groups who killed and robbed; he wanted to return to Algeria to help his village. He said that Meguerba then asked him to help him to make poisons which could be used by the villagers to defend themselves against those bandits. Meguerba gave the appellant a handwritten book in which recipes were contained for poisons and asked him to copy out certain marked passages. Meguerba had asked him to do so, he said, because the appellant was known to have neat handwriting.

22. It was in those circumstances that he came both to have in his possession the recipes to which we have referred, but also the other items in the flat. They had been brought to the flat by Meguerba. The request at that stage was that the appellant should keep the property safely. Those items which were left included a significant number of the items which could be used for the purposes of creating nicotine poisoning and the other poisons, including ricin. It was in those circumstances, accordingly, that the incriminating items were found in the appellant’s possession.

23. He asserted that he had been frightened when he heard about the raid on the his flat. It was in those circumstances that he had gone to Bournemouth. He had been made to feel unwelcome there and so went to Manchester. It was thus that he was ultimately found with his acquaintances in Manchester.

24. His explanation for the lies that he admitted that he had told in the first interview was that he was frightened about admitting anything which could have implicated himself with ricin, bearing in mind the press interest in that finding and the circumstances surrounding the publicity which clearly tied him in with allegations of serious terrorism. He had not admitted at that stage any knowledge of Meguerba because he feared that if he had, and had said anything about what Meguerba had asked him to do, that would cause problems, or might cause problems, for his own family in Algeria. The authorities in Algeria could have taken reprisals against them.

25. He accepted also that he had declined to admit knowing a number of the people who figured in the prosecution’s account of those who might be involved in terrorism for the very good reason that he did not want to admit any connection with them which could have resulted in his being implicated in terrorism himself. He had lied in order to distance himself from what he perceived to be the real risk to him of, as indeed ultimately became the case, being charged with a terrorism offence. He had lied about his connections with the mosque because he did not want to cause problems for the people at the mosque.

26. As a result of this new defence, those acting on his behalf asked for disclosure from the prosecution of documents which were relevant to that new account. Disclosure was particularly requested of information as to the question of Meguerba’s relationship with the Algerian authorities. The appellant’s case was that Meguerba had, to use the colloquialism, “set him up” and that this had been done at the behest of the Algerian authorities in order to cause problems for the appellant.

27. There were extensive and repeated requests for disclosure, as a result of which the prosecution gave substantial disclosure but also indicated that there was material which it was inappropriate to disclose. The judge decided to appoint special counsel to act on behalf of the appellant and, indeed, the other defendants, to examine the material to determine the extent to which the disclosure which had been provided by the prosecution was disclosure which complied with the prosecution’s obligations. Special counsel, having considered the material, indicated that disclosure should be made of certain matters which had not so far been disclosed and the prosecution accordingly disclosed them. But ultimately his conclusion was that the disclosure which had been given complied fully with the prosecution’s obligations.

28. The appellant’s counsel, nonetheless, made a submission to the judge before the trial recommenced after this exercise had been carried out, to stay the prosecution on the grounds that there had been an abuse of process. The basis of that application was that, whilst a substantial amount of material had been disclosed which indicated both the movements of Meguerba and his whereabouts at the time of the trial, namely that he was apparently in the custody of the Algerian authorities, nonetheless there were a substantial number of unanswered questions about Meguerba’s movements between the time when he undoubtedly left the United Kingdom in October 2002 and the time he came into the hands of the Algerian authorities. It was compounded by the fact that after he had come into the hands of the Algerian authorities, and was said to be in their custody, he made telephone calls at the authorities’ instigation which the Algerian authorities themselves accepted had been in an attempt to “provoke” a reaction from people in this country. Accordingly, it was submitted by Mr Massey on the appellant’s behalf that the judge could not have been satisfied that the prosecution was not based upon a ploy by the Algerian authorities to incriminate the appellant using Meguerba in the way described by the appellant. The material before the judge, it was submitted, could not justify him being satisfied that the appellant could have a fair trial.

29. The judge ruled against that submission; and the trial continued. Ultimately, the appellant was convicted of the second count in the indictment.

30. The first ground of appeal before this court relates to the abuse of process application. It is submitted on the appellant’s behalf that the judge exercised his discretion wrongly in concluding that the appellant could still have a fair trial, despite the matters about which his counsel complained.

31. We have had an opportunity ourselves to consider the documentation which was made available to special counsel and are quite satisfied that, in relation to disclosure, full disclosure of all material that it was appropriate for the appellant to see has been made. There is no basis upon which, in other words, it could be said that there is material available other than that which was made available to the appellant which could have either advanced his case, or undermined the prosecution case, which has not already been disclosed.

32. That leaves the question as to whether or not nonetheless, in the light of the material that has been disclosed, the judge was correct in concluding that the appellant could have a fair trial.

33. We have no hesitation in saying that the judge was correct in that ruling. Material was available which made it plain that there were considerable doubts about Meguerba’s position. Material was provided which could have supported the case for the appellant that the Algerian authorities had, indeed, used Mr Meguerba for their own purposes, at least after January 2003; that is, in the telephone calls. That was material which raised a question mark over the activities both of Meguerba and the Algerian authorities themselves. But that does not mean that this trial should have been stopped as an abuse of process. There was no abuse of process by the authorities in this country; and the material which was made available enabled a fair trial of the issues raised by the appellant to be had. We can see no justification for concluding that the appellant was subject to such inhibitions on being able to put forward the account that he did that the trial could properly be said to be unfair. In those circumstances, there is no basis upon which we could say that the conviction of the appellant was unsafe by reason of the trial process or the failure of the judge to stay the proceedings as being an abuse of process.

34. That accords entirely with the views of the single judge who considered this matter in detail and gave a fully and impeccably reasoned decision in relation to this aspect of the matter.

35. It is to be noted that the appellant’s account contains very considerable internal inconsistencies which it is not necessary to rehearse at this stage, save to say that those internal inconsistencies fully justified the ultimate verdict of the jury and are set out in the decision of the single judge.

36. But, nonetheless, the question arises as to whether or not what happened during the course of the trial itself, apart from the application in relation to abuse of process, undermines the safety of the conviction. Mr Massey quite rightly submits that when we turn to those other complaints which he makes in relation to the way the trial proceeded we should take them together and not simply look at each in isolation. We do so.

37. We turn to them now. First of all, complaint is made that the interviews were admitted in evidence before the jury. They formed a central plank of the prosecution case, not only in the context of the change of the appellant’s story, but because those interviews themselves contained clear lies irrespective of the truthfulness or otherwise of the appellant’s final account to the jury. It is submitted that the interviews should have been excluded because they were infected by the fact that he was answering questions against the background of the publicity surrounding the alleged finding of ricin in the flat, which caused a miasma of terrorism to surround the whole proceedings, which meant that the interviews were being held in circumstances which could properly be said ultimately to have been a false premise, namely that ricin had indeed been found on the premises.

38. It seems to us that that submission has no prospects of success. The only legal basis which has been suggested for the exclusion of the interviews was the case of Mason [1988] 1 WLR 130 , where the appellant, who had been arrested on suspicion of arson, was interviewed on the basis of a deliberate falsehood by the police, namely that the appellant’s fingerprints had been found on the glass fragment at the scene of the crime. It was in those circumstances that the appellant allowed himself to be interviewed after taking legal advice, and made his admission that he had handled the glass.

39. This court made it plain that the question of whether or not the court should exclude an interview is not to be based upon any need to discipline the police, but is simply a matter of fairness: is it fair to admit evidence which has been obtained in such circumstances?

40. Mr Massey on behalf of the appellant submits that that is authority, therefore, for the proposition that, where there has been an interview upon a false basis, the court should exclude it as a matter of fairness whether or not the false basis has been the result of dishonesty on the part of the police or not. Therefore in the present case the fact that the police could not be blamed for the fact that they themselves believed that ricin had been found on the premises was irrelevant. The sole question was the fairness of the admission of the evidence in question.

41. In the case of Mason this court made it plain that this was a matter of discretion. The judge had there failed to take into account what the court described as a vital factor, namely the deceit practised by the police. Two things are, therefore, accordingly clear. First, the matter is a matter of discretion for the trial judge; second, if the trial judge leaves out of account a relevant consideration, in that case the fraud of the police, then this court can review the exercise of that discretion.

42. In the present case we can see no justification for concluding that the judge was wrong in permitting the interview to go before the jury. The fact is that the appellant had determined to lie and lie like a trooper. He had a full opportunity to, and did, explain why he lied. It seems to us that his explanation for the lies was fully and fairly put before the jury for their evaluation, which is what happened.

43. The next complaint is that the judge directed the jury under section 34 of the Criminal Justice and Public Order Act 1994 that they were entitled to take into account the fact that the appellant had not mentioned matters which he had put forward in his evidence before the trial itself. The relevant parts of section 34(1) are as follows:

“Where, in any proceedings against a person for an offence, evidence is given that the accused —

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings …

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) applies.

(2) Where this subsection applies …

(d) the court or jury, in determining whether the accused is guilty of the offence charged,

may draw such inferences from the failure as appear proper.”

44. The judge concluded that he should direct the jury that they could draw inferences from the appellant’s failure to give the account that he gave to the jury at the time that he was first interviewed. The appellant does not challenge this decision. In the direction he ultimately gave to the jury the judge said:

“You may draw such a conclusion against him only if you think it is a fair and proper conclusion and you are satisfied about three things. First, that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies. Second, that the only sensible explanation for his failure to do so was that he had no answer at the time or none that would stand up to scrutiny. Third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer by him. The defence invite you not to draw any conclusion from his not mentioning these matters in interview on the basis of the explanation that he did not do so because of his fear that what he said would reach the Algerian authorities and they would seek revenge against his family in the villages. If you accept this evidence and thinks it amounts to a reason why you should not draw any conclusion from his failure to mention those matters do not do so. Otherwise, subject to what I have said, you may do so.”

45. That direction is in accordance with the Judicial Studies Board model direction in relation to this section. It is submitted, however, on behalf of the appellant, that it was defective. Mr Massey submitted to the judge that the passage which starts:

“If you accept this evidence …”

is wrong. The way the matter should have been put to the jury should have been on the basis of some such wording as:

“If there is or may be an innocent explanation …”

It is submitted that the way the judge in fact left the matter to the jury effectively transposed the burden of proof onto the defendant.

46. It seems to us that there are essentially two things to say about that. Firstly, as far as the section itself is concerned, it does not impose any burden one way or the other. It simply talks about the jury being entitled to draw inferences from the failure to mention the facts. But there is no doubt that in the context of a criminal trial it is usually more appropriate to direct a jury, in relation to any evidence that the defendant has given during the course of the trial, that where there is no legal or evidential burden on the defendant, the jury should approach an issue on the basis that if the defendant’s evidence may be correct, then that the defendant should be given the benefit of that matter. The Judicial Studies Board direction does not approach this in quite that way and takes it as a matter of evaluation, which the section itself could prima facie justify.

47. This is not the case to debate this question in detail, for two reasons. Firstly, this particular case essentially depended upon whether or not the jury thought that the appellant was a liar, not simply a liar as between his interview and the account given to the jury, but overall a liar. There is no doubt that he lied in interview, and the judge gave a full and proper Lucas direction in relation to that. The jury could have been in no doubt about the approach they should take to lies. We do not, in those circumstances, consider that even if it could be said that the trial judge erred in directing the jury as he did in the passage to which we have referred, that could in any way infect the safety of the conviction.

48. The judge gave a similar direction to the jury in relation to the fact that the appellant had not provided a defence statement. He gave a direction in accordance with section 11 of the Criminal Procedure and Investigations Act 1996 which entitles the jury to draw such inferences as appear proper where no such defence statement has in fact been submitted. The judge gave a virtually identical direction in relation to section 11 as he had in relation to the section 34 . In our judgment, the same answer can be given in relation to the section 11 direction as we have given in relation to the section 34 direction.

49. The fact is that once again, accepting the invitation of Mr Massey to deal with these complaints on behalf of the appellant in the round and in totality, we do not consider that the jury can have been under any misapprehension as to the need for the prosecution to prove its case; and we do not consider that the safety of the conviction is in any way undermined by reason of either of those directions.

50. It is then submitted that the judge dealt inadequately with the account given by the appellant. The judge in fact directed the jury that if the jury concluded that the appellant’s account regarding Meguerba and the events in Algeria was or may be true they should acquit. The complaint that is made on the appellant’s behalf is that that in a sense, it is submitted, was only half the story. The appellant may have believed what was a lying statement by Meguerba to him.

51. We find it somewhat difficult to understand this submission, because the judge’s direction was clear. It related to the appellant’s state of mind. The jury were told that if they believed that what the appellant said was or might be true, that is that he was told by Meguerba what to do and retained property which Meguerba had handed to him, then that is all that the jury needed to know in order to come to a conclusion about this aspect of the case. Whether Meguerba was lying or was an agent of the Algerian authorities was nothing to do with the case. The question was, what had the appellant believed he was agreeing to. The jury came to the clear conclusion that he did not believe that he was agreeing to some activity in Algeria. The conviction was based fairly and squarely on the jury’s conclusion that that was a wholly untrue account and that the agreement that was alleged in the indictment was an agreement in relation to activity in this country.

52. The final matter about which Mr Massey complains in relation to conviction is that the judge failed to give to the jury a full and proper direction in relation to the fact that the jury were being asked to bring in a verdict based upon circumstantial evidence and that the jury accordingly should have been robustly directed that it was only if the only reasonable inference from all that material was guilt that they could properly convict.

53. With respect, it seems to us that that is precisely the direction that the jury were given. Indeed, the direction given to the jury was in accordance with the suggestions made by counsel on behalf of the appellant himself as to what the direction should be. We can see, therefore, no grounds for criticising the judge at all in that respect.

54. We stand back and look at this case in the light of all the criticisms that are made and ask ourselves whether there could possibly be any basis upon which this conviction could be thought to be unsafe which could justify the matter proceeding to a full hearing. We are firmly of the view that there is nothing in any of the grounds of appeal, taken individually or cumulatively, which undermines the safety of this conviction in any way. The single judge dealt with the matter fully and, if we may say so, came to a correct conclusion for impeccable reasons.

55. There is only one respect in which it could be said that the reasons which she gave could be criticised, and that is no fault of hers. As far as the complaints in relation to the direction under section 34 and section 11 are concerned, she was under the impression that those directions had been given by the judge without any complaint by counsel on behalf of the appellant. It is now apparent from what we have already said that that was not the position. Counsel for the appellant had, indeed, submitted in relation to both that there should be a different wording. But that in no way invalidates the overall conclusion that the judge reached which was that this was a wholly unarguable appeal. We entirely agree with that view. Accordingly, we refuse this application.

( Submissions made in relation to an appeal against sentence )

56. THE VICE PRESIDENT: We turn now to the appeal against sentence. There is no need for the purposes of the appeal to relate the facts which we have set out in our decision in relation to the application for leave to appeal.

57. The judge in sentencing this appellant said as follows, and it seems to us important that all the relevant parts of his sentencing remarks should be set out in full:

“You, in my judgment, on the evidence, were the prime mover in a terrorism operation involving the use of poisons and explosives and intended to destabilise the community in this country by causing disruption, fear and injury. You entered this country illegally, and in order to remain here to carry out the planned operation, you were happy to resort to the use of false identities.

The determination with which you retained your anonymity can be measured by the fact that your true identity, even after this very large investigation, is still not entirely clear.

You were engaged with at least one other for a period of several months in the preparation of this operation, writing detailed recipes for poisons and explosives, collecting raw materials and equipment for those poisons and explosives and starting to experiment with some of the ingredients in that flat.

In the light of events worldwide over recent years, there is good reason for heightened concern about terrorism. Had the operation come to fruition, the resulting fear and disruption, with the potential for injury and widespread panic, would have been substantial. Fortunately, though through no action of yours, the plot was nipped in bud, with the searches at Wood Green in January 2003.”

58. He then went on to deal with the fact that the offences of murder and attempted murder, to which we referred at the beginning of our judgment in relation to the application for leave to appeal against conviction, were connected to this conspiracy of which the appellant had been convicted. It was in those circumstances that he concluded that 17 years’ imprisonment was appropriate. He had regard in relation to that sentence to the principle of totality and stated that as a result it was significantly shorter than it would otherwise have been. It is clear, accordingly, that the judge in sentencing the appellant as he did considered that this was an extremely serious terrorist offence which had to be met by a very substantial sentence of imprisonment.

59. On behalf of the appellant Mr Massey essentially takes two main points. Firstly, he submits that the judge sentenced the appellant on a wrong factual basis. As far as that is concerned, he submits that the judge would appear in the sentencing remarks which we have set out to suggest that the appellant had been engaged in terrorist activity throughout the period since he entered this country.

60. That is not, in our judgment, a fair interpretation of what the judge said. The matters as to the length of time over which the conspiracy existed was dealt with when he said that the period over which the conspiracy continued was a period of at least several months. In other words, he did not ascribe the whole of the appellant’s period in this country to the criminal activities relating to this conspiracy of the appellant and was clearly dealing with it on the basis that it was the period from the time that Meguerba came into this country at least, until the time that the police searched the flat in January 2003. It is submitted that even that is too long a period because Meguerba left this country in October 2002. Accordingly, it is wrong to say that the conspiracy was continuing until the police raid “nipped” the plot in the bud.

61. In our judgment, that is a submission without foundation. The fact is that after Meguerba left in October 2002 it is clear that the material remained in the appellant’s flat. It is the only the appellant’s say so, which had been disbelieved by the jury, which supports the argument that the conspiracy was not ongoing after Meguerba left. Accordingly, we do not consider that there is any basis for concluding that this judge, who had listened to the evidence for many months, approached the sentencing of this appellant on a wrong factual basis.

62. The second, and more substantial, submission is that the jury convicted the appellant of a conspiracy to commit a public nuisance. That is a charge which the House of Lords in the case of Rimmington and Goldstein [2005] 3 WLR 982 said should be confined to cases where there are no equivalent statutory offences which can properly identify the basis upon which the prosecution can proceed and sentence can be passed. The House of Lords did not, however, say that it was wrong in principle to bring such a charge. It is to be noted, in any event, that this charge had been laid before the House of Lords decision in that case.

63. It does, however, undoubtedly raise the problem as to what the appropriate sentence should be, because sentencing on such a charge is at large. Mr Massey is right to say that the court should be guided in determining what is the right sentence by any statutory offences which could sensibly be said to cover, or, at least, parallel, the situation in any given case.

64. Mr Massey submits that the appropriate statutory offence which provides some yardstick for sentencing in this case is section 113 of the Anti-Terrorism Crime and Security Act 2001 for which the maximum sentence is one of 14 years’ imprisonment. That offence is the use of noxious substances or things to cause harm and intimidate.

65. The relevant subsections are as follows:

“(1) A person who takes any action which —

(a) involves the use of a noxious substance or other noxious thing;

(b) has or is likely to have an effect falling within subsection (2); and

(c) is designed to influence the government or an international government organisation or to intimidate the public or a section of the public.

is guilty of an offence.

(2) Action has an effect falling within this subsection if it —

(a) causes serious violence against a person anywhere in the world;

(b) causes serious damage to real or personal property anywhere in the world;

(d) induces in members of the public the fear that the action is likely to endanger their lives or create a serious risk to their health or safety;

but any effect on the person taking the action is to be disregarded.”

66. Mr Massey submits that that clearly covers the facts of this case fairly and squarely and that, accordingly, the court should approach sentence on the basis that the maximum sentence which could properly have been available to the judge was one of 14 years’ imprisonment.

67. It is unfortunate that that section was not drawn to the attention of the judge when he passed sentence. It is unfortunate because it seems to us that this argument would not have been capable of being presented to this court had the judge been given the opportunity to explain why he was sentencing this appellant to a sentence of 17 years’ imprisonment.

68. It is apparent from the sentencing remarks, which we have cited, that the judge considered that the appropriate sentence was to be based upon a conspiracy involving the use of both drugs and explosives. On the evidence that had been heard by him it seems to us that he was fully entitled to conclude that the conspiracy was of that nature. It follows that section 113 is not the appropriate yardstick by itself. The conspiracy involved the use of explosives. The jury were unable to come to a conclusion as to whether or not the conspiracy carried with it an intent to murder. To that extent clearly the question of the maximum sentence available to the court must be moderated, but, strictly, the maximum sentence must be a sentence appropriate for a conspiracy to cause explosions. That is a sentence of life imprisonment. It follows that the judge was not constrained to a limit of 14 years. He was entitled to conclude that the sentencing powers of the court would not only have as its maximum the life imprisonment sentence available for causing explosions, but also the fact that there were two separate strands to this conspiracy which of themselves would justify the conclusion that consecutive sentences could have been appropriate. Indeed, it would not necessarily have been wrong in principle for the judge to have concluded that consecutive sentences might have been appropriate in relation to each of the poisonous substances.

69. Be that as it may, we have to look at the sentence that was imposed in the light of the fact that the judge was entitled to sentence on the basis of a conspiracy of the nature that he described. That sort of conspiracy carries with it inevitably an extremely lengthy sentence of imprisonment. We consider that the sentence of the judge was well within the bracket which was available to him and, indeed, reflected, as he said it did, the fact that the sentence was being imposed consecutively to a determinate sentence of 15 years’ imprisonment within the envelope of an overall sentence imposed for the murder of life imprisonment with a minimum term of 20 years.

70. In those circumstances, we conclude that this appeal against sentence must be dismissed.

71. THE VICE PRESIDENT: Thank you both very much. Thank you very much, Mr Massey, for your help. There is the question of a representation order, Mr Massey. We have indicated in relation to the application that we consider that that was a hopeless application and the single judge had given fair warning that that was her view too. In those circumstances, although you undoubtedly, and those with you, have put in an enormous amount of work, we do not consider it right in the public interest that a representation order should be granted.

72. MR MASSEY: Have your Lordships read the transcript of the letter sent to your Lordships yesterday?

73. THE VICE PRESIDENT: Yes.

74. MR MASSEY: About the background.

75. THE VICE PRESIDENT: We understand that.

76. MR MASSEY: It is simply easing the pressures on the public purse. I say no more.

77. THE VICE PRESIDENT: Mr Massey, I understand your disappointment.

78. MR MASSEY: No, no. On the contrary, I am delighted that the public purse has been saved.

79. THE VICE PRESIDENT: The test that we propose to apply is whether it could sensibly be said that this had any realistic chance of success and in our view it did not. Thank you very much.

80. MR MASSEY: Thank you.

81. THE VICE PRESIDENT: You were given a representation order for—

82. MR MASSEY: Junior counsel only.

83. THE VICE PRESIDENT: All right. Then, as far as the application in relation to sentence is concerned, I think we probably have power to amend that, don’t we?

84. MR MASSEY: You do.

85. THE VICE PRESIDENT: We are going to amend it, but only on the basis that one counsel was appropriate, but we think leading counsel can sensibly be considered in this case. So a representation order for leading counsel—

86. MR MASSEY: Thank you.

87. THE VICE PRESIDENT: — for the appeal against sentence.