RI

RKHYA ANTHONY GARCIA, NABEEL HUSSAIN JA WAD AKBAR,

W ABEED MAHMOOD.

SHUJAH-UD-DIN MAHMOOD & SALAHUDDIN AMIN

I)I~OSECUTION RESPONSE TO THE SKELETON ARGUMENT ON BEHALF OF OMAn, KHY AM

IN_IROQLICTION

J. This document is drafted in response to application made on behalf of the Defendants Omar Khyam, by a skeleton argument dated 20th November 2005,

and Nabeel Hussain, by a skeleton argument dated 21st November 2005, to stay the proceedings on the basis that their pursuit would amount to an abuse of process. These applications are both founded on the prejudice they submit arises from publicity generally, and in relation to the events of ih July 2005 in particular.

2. More specifically, in the skeleton served on behalf of Khyam, it is asserted that:

"The defendant applies to stay the proceedings against him as an abuse of the court's process. The application is based on the real danger of prejudice arising form a combination of the general adverse publicity attaching to the allegations he faces and the specific publicity that had tied his case to

Mohammed Sidique Khan, (he leader ofthos« who caused widespread death and destruction in London Oil

In

skeleton

on behalf of Nabeel l lussain, it is asserted

"This defendant applies to stay {he proceedings against him as an abuse of the court 's due process. The argument has three grounds':

(a) that no jury, properly directed, can safely convict this defendant, due to the adverse publicity concerning "Islamic Terrorism ",'

(b} that no jury, properly directed, can safely convict this defendant due to the specific links between the accused and the men responsiblefor the multiple murders committed on July til 2005, delivered by way of terrorist attack,'

(c) specifically in relation 10 this defendant, it would be an abuse 0/ the due process 0/ the court for the prosecution to invite the jury to find him guilty on the basis of adverse inferences that, they say, can be

drawn from the evidence."

4. The prosecution oppose both of these applications and contend that there are adequate safeguards within the trial process to ensure that any trial of either of the defendants in question is fair.

5. The burden of proof is on the defendant on a balance of probabilities.

6. It will be seen that the arguments to be advanced fall into three parts:

(a) Adverse publicity generally; (b) Links to ih July 2005;

(c) Adverse inferences (advanced on behalf of Hussain alone)

2

7,

has been referred to in prelimi

I ' , I' . I '7111 I

rcanngs, in re anon to t 1C Ju y, the

matter 10 determined is one of admissibil

we understand

position. this approach is agreed by all parties, i.e.:

I f the evidence is admissible, any argument of abuse in relation to it falls away;

(b) If it is inadmissible, obviously any alleged link between the defendants and those responsible for the attacks on ih July will not be adduced or referred to by the prosecution. However, the events of ih July remain as part of the abuse argument in relation to publicity generally.

X. We shall accordingly deal firstly with the question of admissibility, secondly with the Hussain adverse inferences argument, and finally with the issue of publicity generally.

EVENTS OF 7111 JULY 2005 - ADMISSIBILITY

(a) BACKGROUND

9, On ill July 2005, at various locations in London, four suicide bombers caused the deaths of 56 members of the public. Two of these bombers have since been identified as Mohammed Sidique Khan ("MSK"), who died at Edgware Road Underground Station, and Shemzad Tanweer ("ST"), who died at Aldgate Underground Station.

10. Following the events of ih July, a review of the surveillance and audio evidence generated by the investigation in relation to the indictment before the court (Operation "Crevice") revealed contacts between Omar Khyam and Shujah-ud-din Mahmood on the one hand and MSK and ST on the other. Details in relation to those contacts will be set out hereafter.

3

the time of those contacts the identities of MSK and ST were unknown.

]) a letter, dated 1 ill October 2005, the evidence which was at that time

available was disclosed to the defence. This letter indicated that the statements "are being forwarded at the moment by way ol disclosure. f Iowever. f anticipate they will be converted into a notice offurther evidence in due course. 1 forward the material now in order that you have it at the first available opportunity. "

13. By a notice of additional evidence, served on 21 st November 2005, the principal evidence in relation to this topic, which had already been disclosed, was served as evidence. It is now to be found at pages 2122-2234 and 2275.

14. Since then, further evidence has been served in relation to formally proving that MSK and ST were involved and died in the events of ih July. This material was served by a notice of additional evidence on 9th December, and is now to be found at pages 2361-2369 and 2370-2399.

15. The evidence on this topic relates primarily to the following days:

(a) 2nd February 2004 (b) 21 st February 2004 (c) zs" February 2004 (d) 23rd March 2004

16. The evidence in relation to each of these dates is set out in the schedule of events attached behind divider A. In addition, behind divider B are copies of the relevant photographs. We have taken the liberty of indicating who is suggested to be whom in those photographs.

4

u

'liE

CE

17,

.)NI)

II Y

17.1 Khyam drove '

(the Vitura) to Langley Parade, Crawley and is seen

parked next to a Honda Civic

. There are various

movements and inter changes between the occupants from one vehicle to the other. Shujah is also observed alighting from the Vitam,

17.2 The Honda and its occupants then travelled north and stopped at Toddington Services on the MI. Surveillance photographs were taken of MSK and ST [Divider B, page 1, exhibits pages 5389-901. The Honda in due course ended lip in the early hours of 3rt! February in Leeds.

17.3 The subsequent identification of MSK is supported by the fact that on the is" March 2004 the Honda was taken to a garage (the "Just Car Clinic" - statement of Andrew Swift p.2288) by Mr. S.Khan. While repairs were carried

out a replacement Vauxhall Corsa

was provided.

18. 21 ST FEBRUARY 2004

18,1 At 20.50 hours, Khyam and Shujah were seen to leave 2, The Hollows, Gossops Green and went to Langley Parade in the Vitam. Conversation in the Vitam was recorded by the probe [Exhibits p.6277J. MSK's voice has been identified from that recorded conversation by DC Binstead [statement p.2287]. His identification is confirmed by the references MSK made to the anticipated birth of his baby.

19. 28TH FEBRUARY 2004

19.1 Khyam and Shujah were seen in the Vitara, which pulled up alongside the

Honda, in the Sainsbury's Car Park in Crawley.

5

19 in due course both vehicles travelled 10 Slough and the occupants of both

vehicles at 16. all of them got into

the Honda and travelled to the Toddington

Station.

19.3 Photographs were taken [exhibits ACW/8-11, exhibit p. 82, divider B, p.3].

From these it is possible to identify, in addition to Khyam and Shujah, MSK, ST (wearing a Helly Hansen hat)

19.4 They were then seen to return to Slough via Wellingborough (at 23.35).

20. 23RD MARCH 2004

20.1 The Vitara was driven to Crawley. Khyam, Shujah, MSK, ST and another

alighted from it. Thereafter, the Corsa was seen and, in Uxbridge, photographs were taken of the above named individuals. Those photographed included the and Azar Shezad Khan, a cousin of Khyam

[Divider B, p.7, Ex.p.5400-5410].

(C) SUBMISSIONS AS TO ADMISSIBILITY

21.1 There is evidence from which the jury would be entitled to conclude that, firstly, there was a conspiracy to cause explosions in the United Kingdom, and, secondly, Khyam and Shujah were involved in activities which as a matter of fact related to such a conspiracy.

2l.2 We provide only some of the headings:

(a) Khyam

(i) Involvement in the storing of the fertiliser at Access Storage, including transportation, maintenance of payments, checking the bags etc.;

(ii) Possession of aluminium powder;

(iii) Audio surveillance evidence;

6

(iv) Emails with Khawaja and activities with Khawaja over the weekend 0 f :W1h

[v ) Evidence of Bubar.

(i) Assistance regarding storage of fertiliser by paying £250 into Hussain's account on Slh March 2004 in order to maintain

payment;

(ii) Possession of aluminium powder;

(iii) Audio surveillance evidence;

(iv) Collection of, and association with, Khawaja over the weekend of 20lh _22fld February 2004;

(v) Babar evidence.

21.3 Both defendants in different ways raise in their prepared statements [Exhibits pp.194 and 196, and at Divider C], issues as to the nature and purpose of their activities, meetings and associations during the relevant period.

21.4 Particularly in relation to Khyam in his prepared statement, it is suggested that the fertiliser was not acquired for illegal reasons and when he checked the fertiliser, collected Khawaja and stored the aluminium powder (which he thought was paint) he carried out these acts innocently as a favour for another.

7

1.6 In Shujah« prepared statement, he asserted that he had no knowledge either

the or the aluminium into the 1 ussain account

at tile request of Khyarn, and he had about proposed acts ofterrorism".

taken part in any conversation

21.8 It follows therefore that if the evidence under consideration shows that there were meetings, conversations etc. which the jury could conclude related to the conspiracy alleged, such evidence is probative as to:

(i) the existence of the conspiracy and the defendants' involvement, and

(ii) to rebut the defences raised as to the lack of knowledge.

21.9 If one looks at the evidence under consideration firstly In general terms it demonstrates:

(a) meetings over a period of about two months when the conspiracy, the jury would be entitled to conclude, was approaching fruition, and

(b) on each occasion MSK and ST travelled considerable distances to attend meetings and to travel with Khyam and Shujah.

21.10 If the meetings are examined in a little more detail, that which took place on 21 st February is of considerable significance. This was of course the occasion when Khawaja who was responsible for the provision of the remotely controlled detonators travelled to England following the exchange of emails with Khyam.

8

1.11 11 is unlikely to he a coincidence that

and

travelled form Leeds to

on

that

was

Shujah

at 2 Hollows.

1.12 Further, the transcript of the conversation in the Vitam I Ex,p,6277, Divider D L it is submitted, rebuts the assertion made

It is difficult to accurately and fairly extract passages from a transcript. However, it is submitted that the conversation overall is concerned with intended terrorist activity. Whether this is an accurate submission can only be gauged by a reading of the 10 pages of transcript.

21,13 I Iowever, we draw particular attention to the following:

*

"We've got like a list ofquestions to ask" [p, 1 J

"L'm not a terrorist but they are working through me" [p.2]

References to Quebec, Pakistan and training camps [p.J], and to leaving for Pakistan being a "one way ticket" [p.J]

MSK asking for an extension before travelling [p,3]

The equipment being collected prior to travelling [pA-5]

Anticipated police activity - "in the next month they are going to start raiding big time all over the UK" [p,6]

MSK debating whether to say goodbye to his child [p.o]

*

*

*

*

*

*

21,14 This evidence has to be viewed against the background of existing evidence,

I.e, :

(i) Khyarn had told Babar that he would leave the UK before the explosive operation reached fruition;

(ii) Khyam and Shujah had purchased tickets to go to Pakistan on 6th April 2004;

(iii) Khyam on rs" March was to tell Access Storage that a further deposit for a further contract would not be needed as this was to be the last month of storage,

9

I <

1.1

meeting

K and

and the conversation is viewed in its full

context throughout, the jury would entitled to conclude that it:

(a) Is evidence which tends to show that Khyam had not abandoned the

possibility or causing an explosion in the UK

On the

contrary, his plan to remove the ammonium nitrate to be used for such a purpose and depart for Pakistan before the explosiorus) was still very much intact

(b) This is supported by a need fIX a meeting on 23rd March, barely a fortnight before (he departure.

(d) The jury would be entitled to conclude that Shujah would not be allowed to be a party to the meetings and this conversation when terrorism might be (and was) discussed if he were not a party to the

conspiracy.

(e) Likewise, it tends to rebut Shujah's contention that he had no knowledge of any such conspiracy and that his actions were innocent

ones.

22.1 These submissions are now fortified and extended by the evidence which Babar can now give in relation to MSK. It maybe helpful if we set this in its context and recite its effect prior to setting out our submissions in relation to it.

22.2 In about February 2003, Waheed Mahmood had indicated to Babar that he could not understand why people came all the way to Pakistan to fight when they should be fighting Jihad in the UK and conducting operations there

[p.1886] .

10

.3 In June,

toid

that he wanted to do operations the

was

clear from the context that

to bombings,

motivation was

support for the

were

discussed the precise method and targets were

to nightclubs and trains" Ip.1899j .

, save for some

.4 By the following month the training camp had been arranged. This was in due course attended by Babar, Khyam, Shujah, Akbar, Garcia and Khawaja, as well as by others.

22.5 Those participants who were not already in Pakistan arrived at various times.

Akbar arrived on the zs" July 2003 on t1ight GF-434 [Ex.p.SS07]. Khyam and Babar attended Islamabad airport to meet him. At the same time Amin met two others, Ibrahim and Zubair, "whoQ had asked him to collect" [p.1911 J.

22.6 Ibrahim was in fact MSK. Babar learned that he and Zubair had trained previously in Kashmir camps. Babar presumed this was the first occasion on which Khyam and Amin had met MSK because they did not know what he looked like [p.240S].

22.7 Later that day in Arnin's flat, Khyam told MSK about the training camp.

22.8 Thereafter, Babar and Khyam collected all the ingredients for the training camp including ammonium nitrate and aluminium powder [p.19 12).

22.9 A few days later, a group including Klhyam, Babar, Akbar, Zubair and MSK set off for the training camp, having stayed overnight at the Capital Hill Lodge in Islamabad with Arnin before doing so [p.1912].

22.10 On the way to the camp more ammonium nitrate was purchased. MSK travelled with Khyam and Babar in the back of a pick-Up truck. At the camp Babar recalls MSK firing an AK47 and a light machine gun and holding conversation before [pp. I 912, 2406].

II

1 ]

the training camp

were

to return to

as

socm as

and Babar

.1 The submissions set out at paragraphs the February and March meetings with M (he light of such further evidence.

and

probative Impact of now to be viewed in

23.2 The fact that there are at least 4 meetings in the 2 month period when, for reasons explained, the jury could conclude the plot was reaching fruition, with an individual so clearly involved with Khyam, Shujah, Garcia and Akbar in relation to the training camp, is itself, it is suggested, of probative force.

23.3 Further, the evidence in relation to MSK and the training camp has considerable probative impact upon the nature and purpose of such meetings. For example, the chances that the MSK/ST journey to Crawley on 21 st February, when the meeting with Khawaja was taking place, was coincidental can be discounted. In this respect it is worthy of note that Khawaja attended the camp at the same time as MSK before leaving Pakistan at approximately the same time (28th July).

23.4 When joint attendance at the camp, the meetings in February and March, the storage of the ammonium nitrate fertiliser etc. are put together with the events of ill July 2005, the jury would be entitled to conclude that the purpose of the meetings was in furtherance of a conspiracy to cause explosions in the UK.

23.5 That MSK attended. such meetings and had attended the training camp strengthens the rebuttal that the conspiracy had been abandoned.

23.6 An extension to the claim of abandonment is the possibility that a JUry, without the full picture, might conclude that the actions of the defendants in attending the training camps etc. were acts of bravado and nothing was in fact intended to result. This is significant evidence to rectify such a false

impression.

12

.7 In relation to tile

1.' I I), I

OJ "c)ruary(at

to

". '. I don '{ even live in Crawley any more because in the next month they're going to start raiding big time allover {he UK"

This, the jury would be entitled to conclude, is consistent with the operation reaching fruition and both MSK and Khyam leaving. Please see MSK reference.

"I'm debating whether or not to say goodbye ".

23.10 The issue of abandonment and the impact of MSK and ST in relation to it has consequential effects upon the defendants. For example Hussain claims that he could not have been suspicious as to Khyam's intentions prior to 18lh March. Any evidence which suggests that Khyam had abandoned such plan by 18lh March would have considerable relevance therefore to Hussain's case. On the other hand, the meeting on 23rd March with MSK, with whom Khyam had attended the training camp, is significant evidence in rebuttal of such an

assertion.

24. In the skeleton argument of Nabeel Hussain at paras.32 and 33 discrete submissions are made as to the "impact of the MSK evidence upon this defendant, i.e.

13

II,

J

this defendant

no links to

That

evidence

no probative value in regards to ajury deciding whether

he had the requisite knowledge and intention. 1/ would only he

prejudicial,

il is submitted. overwhelmingly so.

The Defence will argue that the Defendant cannot possibly be fairly tried if the Crown seek to put this evidence before a jury. The Prosecution cannot ignore the prejudicial effect that this evidence will have on this Defendant's case, or dismiss itr as an unfortunate

consequence.

26. Whether one describes Khyam and Shujah's contact with MSK and ST as prejudicial or probative, it can have in logic no prejudicial effect, overwhelming or otherwise, upon Hussain. The jury will no doubt approach their task in stages regarding the defence i.e. firstly was this a conspiracy as alleged and, secondly, was Hussain a party to it. The MSKJST evidence has a bearing only on the first issue, and Khyam and Shujah. It will be easily explained and understood that this is the case.

(D) ADVERSE INFERENCES AGAINST HUSSAIN

27.1 This argument is developed at paragraphs 1-10 of the skeleton argument served on Hussain's behalf. It is in many respects an application to dismiss clothed in an argument in relation to publicity.

27.2 An application to dismiss was not made and, we submit, for very good reason.

14

The

not

basing its case

upon "what the

mall come to understand about the terrorist threat by )jiay oj

prolific media reporting", The prosecution case will be based upon the defendant's state of' mind at the relevant time as derived from the relevant admissible evidence,

27.4 Such an approach is not in any way irreconcilable with the Court's duty to warn the jury not to convict on the basis of adverse publicity regarding the terrorist threat. It is a logical extension of such an approach.

27.5 The court moreover may well underline that the defendant's state of mind is to be judged at the relevant time and not in the light of any hightened awareness which may have arisen since March 2004.

28.1 The jury will be fully entitled to draw inferences adverse to the defendant but they will not be the product of prejudicial publicity. They will be the product of all the circumstances in which are derived from the defendant's activities and all evidence which is admissible against him.

28.2 We do not wish to be drawn into a response to what is, in reality, an application to dismiss. However, proper matters for the jury to consider and frorn which they would be entitled to draw inferences include:

(a) The defendant is hardly unintelligent and was doing a degree m International Politics [Stephen Line p.2038]

(b) He was very closely involved in the storage of 600kgs of ammonium nitrate fertiliser over a period of 5 months.

(c) He was almost exclusively responsible for paying for the storage.

(d) The available evidence in relation to the work and lifestyles of the defendant and his associates are totally inconsistent with any innocent

15

reason

and storim; such a quantity of ammonium

r liser at an

It is correctly asserted on behalf of the defendant that in

statement the

undercover officer Amanda, in relation to I

March, states that Omar Khyarn

"stepped in and became the more prominent person and Nabeel appeared 10 he the passive person ..... Ip.2081. In fact in fairness to the defendant the witness expands upon this theme at p.21 0 in the following terms:

"I noticed Omar appeared to control the meeting with myself, asking and answering questions directed towards Naheel Hussain, prior 10 Naheel answering. Nabeel appeared to be passive throughout the period and when unsure of answering questions put forward to him he would appear to 100 towards Omarfor guidance. r r

30. The observations however must be considered in their true context. Firstly, it is accepted entirely that Omar Khyam was the prime mover in this alleged conspiracy; secondly, they relate only to the I ill March; thirdly, if the totality of Hussain's activities in relation to the ammonium nitrate fertilise is examined, it will be seen that it provides ample evidence from which the jury would be entitled to draw adverse inferences as to his knowledge and intention. It may be helpful to set these activities out, in outline at least:

(a) On 10til November 2003, when Garcia reserved the Access Storage facility, he was equipped with details of Hussain's Switch card [Wallis p.23];

(b) Emma Wallis spoke to Hussain on the telephone in relation to this card. It was used to pay the deposit [Wallis p.23];

(c) On 11 til November, the lorry was hired from Ludrose Vehicle Hire prior to the delivery of the ammonium nitrate fertiliser. The actual hiring was effected by Khyam and Nadeem Ashraf. However, the cellsite evidence in relation to Hussain's telephone indicates use of that

16

at

of the hiring in the immediate

of

11 J .41 ami I

pp.4090,

The contract for the storage facility was entered into in Hussain's name. He provided as proof of identification his passport and National Westminster Bank statement [Exhibits p.65];

(e) Louise Wallis.noted that "Anthony (Garcia) and Nabeel did the talking while ! prepared the contract, addendum contract-which is an alteration to the contract > and we discussed payment procedures"

[Wallis p.23];

(1) Hussain provided his date of birth as the first code number for the unit and then corrected the spelling of his name on the Access Sheet [Wallis p.30, Exhibits p.77];

(g) Hussain assisted in the unloading and storage of the fertiliser. The witness Wallis noted during this process that "the bag had a sign of flames like a warning hazard' and the witness Saini that it "had a hazard warning sign on the side with warnings" [Wallis p.24, Saini

p.38];

(h) Thereafter Hussain paid for the storage (save for £200) until March at a rate of £207.45 per month. This was of course approximately 10 times the cost of the fertiliser;

(i) This has to be judged in the context of the state of Hussain's finances.

His student grant was paid direct to BruneI University and he was living off an overdraft [David Line p.2038];

CD The £200 referred to above illustrates the liaison between Hussain, Khyam and Shujah. This was paid into the National Westminster Bank by Shujah on s" March 2004 to be credited to Hussain's account. This it was hoped would reduce the overdraft sufficiently to meet the March

17

event it in the

not

so, but the payment was made

while

and Hussain had

his

account

to

to enable the credit to be made

p.69( 148)1.

31. These acts alone provide, it is suggested, abundant evidence from which the jury would be entitled to draw inferences adverse to (he defendant, ie that the defendant could not have performed such a role without knowledge as to the ultimate use to which the fertiliser was to be put.

32. To this parcel of evidence has to be added the Transco CD Roms, which arc dealt with at paragraphs 3-6 of Hussain's skeletons. Again, the submissions made have to be set in context:

(a) The audio probe material reveals the utilities as possible targets eg 221H1 February 2004. We make clear that Hussain was not a party to this conversation, but is important in order to understand the significance of the CDs [Transcript pp.13-17, 65-69];

(b) The CDs can be shown to have been derived from Waheed Mahmood's employment (set out at paragraphs 105-114 of the Case Summary);

(c) On l " March, Jawad Akbar is heard to be very concerned as to his inability to find 2 CDs i.e.

"No its something else much more serious, 1 don't even know where 1 put them ... its CDs, two CDs. There's no CDs ... they got Transco written on them ... Transco ... you know hat if we get raided today, I'm finished. " [Transcript p.89 (19)];

33. The assertion that "there is no evidence to suggest that Nabeel Hussain knew of viewed or otherwise handled the contents of the Clr-Roms"

18

has to be

in the light of the

that:

(a) They were found, twelve in number, on top of his desk in his student accommodation I Cousin 1'.11861;

(b) IIis left thumbprint was found on the plastic cover of one of the discs [Moore p.13751.

34. We have been unable to locate the evidence which supports the suggestion contained in paragraph 4 of the defence skeleton that Akbar "Accepts that he brought them to Nabeel Hussain's university accommodation so that he could view them on Mr Hussain's lap-top computer".

(a) The skeleton argument relies on the probe evidence as to the conversation between Hussain and Akbar on 18th March [Transcript

p.238 (539)];

(b) The construction to be placed on this conversation is very much a matter for the jury. The defence can legitimately point to passages which are consistent with lack of knowledge prior to that date, eg:

"You know fertilisation, what can you make out of it, can you make things out ofit" [p.238 (539)]

And

"a couple of months 00' never knew what it was, 1 never asked, J considered doing afavour" [p.240 (541»).

(c) This will have to be compared with other passages, eg:

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"Big, big, the size ofthis kitchen, yeah its in a room, stored in a room,

what its huge, amount of explosives there you could lake yourself

massive big out man" Ip.241 (542)1

Such passages may point in a different direction,

(d) The jury will be well placed to decide whether in reality the discussion centres around what is going to be said should Hussain be arrested

[p.242 (p.543)].

(c) What is of importance however is that this conversation must be construed in the light of the evidence relating to the storage, payment, CDs etc.

35. If the evidence is viewed as a whole and in its proper context, it provides abundant material from which inferences adverse to the defendant could properly be drawn. Such inferences moreover would have nothing to do with publicity and everything to do with the evidence.

(E) PUBLICITY IN GENERAL

THE TEST

36. The principle to be applied as a test to the question of whether or not there can be a fair trial in eases where complaint is made in relation to publicity is that identified by the Privy Council in Montgomery v HM Advocate [2003] 1 AC 641 per Lord Hope at p.667:

"The common law test, which is applied where pre-trial publicity is relied upon in support of a plea of oppression, is whether (having regard to all the circumstances) the risk of prejudice is so grave that no direction by a trial judge, however careful, could reasonably be expected to remove it. "

20

m are Lord I at I ).
!
t. is an a was a

possibili that a J

sworn and

appropriately directed would allow (hose measures [0 be overridden by bias against the defendant

APPLICATION OF THE TI':ST

38. It is submitted that the Court can be confident that there is no risk that bias will contaminate the proceedings because:

(i) The Jury will take an oath to try the case on the evidence, and the effect of this should not be underestimated.

(ii) Juries over the years have demonstrated the ability to put extraneous material to one side.

(iii) As an example of this, juries are often required to, and do, disregard inadmissible evidence against one defendant in a multihanded trial albeit that such evidence may be highly prejudicial, The point was well put by Lawton LJ, in R v Coughland and Young [1976] 63 Cr.App.R.33, at p.37, he said:

"It is our experience that juries in general understand the responsibility which rests upon them. They know that they have to be sure of guilt on the evidence before returning a verdict of guilty ." juries are capable of disregarding that which is not properly before them. They are expected to disregard what one accused says about another in his absence. If they can do that, which is farfrom easy, they can disregard what has been said in a newspaper. ,.

21

(iv) is J]O reason to suppose that juries do no abide by judicial

directions, The trial is designed to deal with such sill ' can be reinforced by appropriate directions at the

beginning of the trial as terms.

as

the summing up and can be in

(v) The very nature of the criminal trial and the disciplined concentration upon admissible evidence focuses the jury's mind to the exclusion of extraneous matters. This has been well recognised by the Courts, for example:

(a) In R v Kray [1969] 53 Cr.App.R.412, at pp.412 and 415, Lawton J said:

"711C drama ... 0/ a trial always has the effect 0/ excluding from recollection that which went be/ore. "

(b) In ex parte The Telegraph [1994J 98 Cr.App.R.91, at p.98 Lord Taylor said:

a court should credit the jury with the will and ability to abide by thejudge 's direction to decide the cased only on the evidence he/ore them. The court should bear in mind that the staying power and detail of publicity, even in a case of notoriety, are limited and the nature ofa trial is to focus the jury's minds on the evidence put hefore them rather than on matters outside the courtroom. "

(c) Montgomery v HM Advocate [2003] 1 AC 641 per Lord Hope at p.673:

" ... The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the

22

discipline 10 which the jury will be subjectcc! of listening /0 and thinking, about the evidence. The actions hearing the witnesses may be expected 10 have a far greater impact on their minds than such residual recollections as may exist about reports' about the case in the media. This impact can be expected 10 be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate /0 give them as the trial proceeds '" "

(vi) There is perhaps a tendency for those directly involved in a case to over-estimate the impact of pre-trial publicity. In Montgomery v !1M Advocate 120031 1 AC 64 I, Lord Hope at p.673 observed:

"Recent research conductedfor the New Zealand Law Commission suggests that the impact ol pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Young, Cameron & Tinsley, Juries in Criminal Trials:

Part Two, Vol 1, ch. 9, para.287 (New Zealand Law Commission preliminary paper no.37, November /999).

(vii) A further, very recent, application of the principle is to be seen in the decision of the Court of Appeal in R v Abdroikov and others [2005) EWCA Crim 1986, regarding challenges to jurors under the new regime of eligibility under the Criminal Justice Act 2003, on the grounds of an objective risk of bias resulting from their occupation and consequent knowledge of the criminal justice system. See in particular:

(a) As to the test to be applied - para. 1 5;

(b) As to the ability of a particular juror to draw inferences in a case due to their knowledge of the criminal justice system and as to the objective confidence of the courts of their oath and appropriate directions nevertheless being sufficient safeguard to a fair trial - paras.26 to 30;

23

(e)

to

fundamental

ranee

process as being adequate salcgmmt to a fair trial

(d)

to the limited area of a juror

of

the individuals in the case or as to the facts of the case

the

being a matter that they can be

to

to the attention of the court, when it would then be for the court to apply the objective tcst- paras.33 to 37.

39. It is important also to examine the nature of the publicity itself:

(i) It is accepted that it has at times been inflammatory and sometimes inaccurate. It is important to recognise, in the context of whether or not this defendant can have a fair trial, that it has mostly been balanced by the point being made that the vast majority of Muslims and the tenets of Islam find such terrorist activity repugnant.

40. It is also important to consider the public reaction to the recent bombings in July. This submission can be illustrated by reference to the judgement of Fulford J, in considering a similar application for a stay on the basis of adverse publicity in the case of Andrew Rowe, which was handed down on 6th September. At para.19 he said:

c c ... 1 have no hesitation in rejecting that suggested (potential) inability on the part of a jury (in London or elsewhere in this country) to put any fears they may have of their own to one side, along with the press reporting, in order to undertake the focussed exercise of assessing the evidence and the particular question of the defendant's guilt or innocence in this case. Dramatic though the events ofJuly were, it is in my view a considerable exaggeration to suggest that the public has become or may have become so gripped with fear that rational thought and reasoning, together with fairness, will no longer be applied in the jury room in this case. Members of the British public are well able to apply themselves to a particular task with all due care and consideration notwithstanding the fact that we may now (at least for the moment) live in a somewhat more dangerous world. These events have not

24

produced mass panic; they have made little difference to the way in which

Londoners

about their lives: and although some may have altered their

mode oftransport or

or when

that is a

concluding that the public those who will form this jury have lost their

ability to try a Muslim defendant fairly andjustly ".

related

properly,

41. The Strasbourg jurisprudence does not lay down a precise approach to the determination of whether the available safeguards can be relied upon to fulfil the requirement that the impartiality of the tribunal can be objectively justified, to paraphrase the words of Lord Hope in Montgomery (at p.670). However, the decision of the European Court on Human Rights in Gregory v United Kingdom (1988) 25 ECHR 577 provides some guidance and good examples of cases where there was actual evidence of bias but where judicial direction was the appropriate and successful tool to secure impartiality.

42. The recent decision in lvfeziane and Benmerzouga [2004] EWCA 1768 provided good examples of where media reporting related to issues in a trial, and also took place during the trial itself. In the Court's decision:

(e) The principles to be applied were confirmed (paras.47 to 48);

(1) The unprecedented media interest in terrorist activity and terrorism borne of militant Islamic ideology was fully recognised (para.55);

(g) The objective capacity of the oath, judicial direction and the concentration of the trial process, to dispel any potential prejudice that may have been created by the publicity, was however equally recognised (para. 57).

43. The logical extension of the defence argument is that the more serious and notorious the allegations and the more intense the publicity, the stronger the argument for a defendant not to be tried. This cannot be in the public interest,

25

m R l'

[19961 2 Cr.App.R(~n

CIt p.J

"The question si/ch

Oil behalf

is whether alair trial could

to the accused. In our view it could

To hold otherwise would mean that il allegations oj' murder sufficiently horrendous so as inevitably to shock the nation, the accused can not be tried That would be absurd. Moreover, providing the judge effectively warns the

jury to act only on the evidence given in co urt, there is no reason to suppose that they would do otherwise ... "

44. It should finally be noted that there have been cases since the attacks in the US

1 1 til Q b l i I di I'" .. l si 7th J I .

on Septern cr, anc inc u mg a l eCISlOn Il1 one major tria smce u y, m

which juries have acquitted defendants, having followed faithfully the directions referred to above.

2, Hare Court,

David Waters Q.c.

Temple.

5, King's Bench Walk, Temple.

Mark Heywood

6, King's Bench Walk, Temple.

Duncan Atkinson

22nd December 2005

26

OMAR Kli ANTHONY GARCIA, NABEEL IIUSSAIN JA WAD AKBAR,

W AImED MAIIMOOD, SIIUJAHH-UD-DIN MAHMOOD & SALAHUDDIN AMIN

APPENDIX A: SUMMARY OF EVIDENCE

I. EVIDENCE OF THE IDENTITIES OF MSK AND ST AND THEIR CONNECTION WITH THE EVENTS OF ih JULY

1.1 The voice heard on the probe in the Vitara on 21 st February is the same as that ofMSK [Binstead p.2287, 2381).

1.2 The car first seen on 2nd February, a Green Honda Civic, registration R480 CCA, belonged to MSK who brought it to the Just Car Clinic on is" March to be repaired. During this repair process he was given a courtesy car, a green

Vauxhall Corsa,

The car was delivered to 10 Thornhill

Park Avenue, Dewsbury for MSK [Swift p.2288].

1.3 Documentation in the name of MSK was found in the bombed train at Edgware Road Underground Station when it was searched after the explosion on ih July. These were his Leeds City Council Permit and Zurich Insurance Card [Cooper p.2361] and his Barclays and Halifax Bank cards [Wilson p.2362].

1.·+

1.5

In the same location was found human remains

DNA analysis. This confirms the

of

at that scene

Melronald

March

70, Clayton

explosion on 71h July, a spine was recovered that has been identified from DNA examination as that of Shazad Tanweer [Mcneely p.2364, McDonald p.2365, March p.24001

When the bombed train at Aldgate Underground Station was

1.6 On 1 st September the BBC "News night" programme transmitted a statement by MSK confirming that he was responsible for the bombings on ih July. This was repeated on 15th November on Channel 4 News. This voice matches that heard on the probe [Binstead p.2381, Cheesley p.2404].

2. OBSERVATIONS ON 2ND FEBRUARY 2004

TIME

ACTIVITY

20J)4

Khyam in conversation with a male in the vicinity of 90 Langley Drive

20.23 Khyam parked the Vitam in Dove Close. He got out

of the car and met with a man 20 yards from the vehicle. Shujahh remained in the vehicle, with a box on his lap, until he received a telephone call which caused him to get out, to look for Khyam and then to return to the vehicle

20.25

Khyam drives the Vitam to Langley Parade and parked next to Honda _

20.28

Khyam and Shujahh got out of the Vitam and three men got out of the Honda. They chatted for some time before they got back into the cars, 2 in the Honda and 3 in the Vitara

to

lson

the

20.30

Honda Khyarn was in the was in the driver's scat.

were :;

Vitara- some of whom originated from the Honda

1.14

turned into a retail park. It

The Honda

pulled up outside MacDonalds and its occupants entered that establishment

21.21

drove out of a retail

The Honda

and headed south on the A23. It then made a u-turn _ at a roundabout and headed north on the A23. The

vehicle then travelled along the M23 towards the

M25

22.36

drove north on the M I and

stopped at the Toddington Services. Photographs were taken of the occupants of the car. The driver of the vehicle purchased petrol

01.15 3/2 I stopped in

Trentham Street, Leeds. A male got out of the car and entered 115-117 Lodge Road

01.17 3/2 Another male got out of the Honda the vicinity of 115 Tempest Road, Leeds

Honda

parked outside 10 Thornhill

01.37312 The Honda

Park Avenue

3. OBSERVATIONS ON 21st FEBRUARY

TIME

ACTIVITY

09.51

Khyam was driving the Vitara in the company of

Khawaja

12.31 Khyam, Khawaja and Shujahh entered the Universal Video Internet Cafe

19.55 People entered 2, The Hollows, Crawley

III

s

ME

ACTIVITY

08.44

Khyam drove the Vitara to the area of Langley Walk, Crawley with Shujah as his front scat

08.56

passenger

Khyam drove the Vitara into the car park of Sainsburys, Crawley and pulled up alongside a J fonda I The 3 occupants of the Honda _ entered MacDonalds on the same site

09.00

The Vitara moved away from MacDonalds towards Sainburys, and Khyam entered the store

09.02

Khyam left Sainburys, returned to the Vitam and drove it back to MacDonalds. He and Shujah then _ joined the I men from the Honda _ in MacDonalds; one of the men was wearing a blue

Belly Hansen hat.

09.42

proceeded in

The Vitara and the Honda

convoy via the A23 and A2219 to the area of Tenvale Place, Denvale Trading Park. A man _ carrymg a piece of paper left Marshalls Building

Supply Centre, in this Park, and got into the Honda

-

10.10 Shujah left Howdens, returned to the Vitara and the 2 vehicles then drove to Gatwick Road, Crawley

Trading Crawley. Shujah alighted from entered Howdens Builders

was

heard to enquire about opening 3 business accounts, and was told that he could only open one account and that his bank details would be required.

10.24 Shujah was seen to exit Plumbase at Unit 7, Gatwick Road and to return to the Vitam. The 2 vehicles then moved off south.

10.38 Both vehicles drive away from Jewson builders merchants, Stephenson Way, and towards PTS Plumbing Supplies, Meadow Brook Industrial Estate

13.07 Khyam and Shujah moved off in the Vitara in convoy with the Honda _, which still contained the I males. The vehicles proceeded along the M23, M25 and M4 to the Mosque on _ Elliman Avenue, where they parked at 14.14

14.53 Both vehicles drove in convoy from the mosque to Hencroft Street, Slough

15.04 The Vitara parked at the rear of 56 Hencroft Street, while the Honda _ parked on the forecourt outside the front of the premises. Four males left the Honda _ and joined Kyam, _ who was carrying a video camera. They all entered

the premises

and the I Icncroft Street.

boot of the Honda north to the Slough

restaurant In Park

16.27

Khyam, Shujah and the

men Irorn the I Ionda

left the New Kabana restaurant and

They were joined by Khyam and the vehicle drove north towards the M25

16.52 The Honda drove north from the M25 onto the MI.

17.42

The Honda

stopped at Toddington

Services on the M 1, where the vehicle was refuelled. The vehicle then continued north on the M 1 towards Wellingborough

18.20 Khyarn

entered

21.26

occupants of the 110nda_

The group left when the lights went off and walked to Flames restaurant on Midlands Road. They stood outside this establishment eating _ and Khyam used his mobile telephone on 3

occasions

Khyam, Shujah and the

returned to the

110mb

which drove

the

to the

L They travelled for a

short distance south

on the A I before travelling on the 1 northbound. A similar detour was made via a slip road at junction 5

.05

left the M 1 at junction 6 and

The! londa

travelled west on the M25 to the M4, on which it travelled to junction 6. It then drove, via the A355 and A4, to Herschel! Street, Slough, arriving at 23.35.

23.40

Khyam and Shujah got out of the Honda lIB and entered 56 Hencroft Street. The Honda _ left the scene

5. OBSERVATIONS ON 23RD MARCH

TIME

ACTIVITY

11.16 The Vitara headed south on A23, driven by Khyam and with 2 passengers

12.55 A man retrieved a mobile telephone from the Vitara and returned with it to 36 Langley Drive

13.13 Khyam left 36 Langley Drive and got into the Vitara with four others

11.12

The Vitara was seen at the rear of the South

Terminal in East Perimeter Road, Gatwick. Ahmed Ali Khan was seen shaking hands with someone

21.10

The Vitam stopped at a petrol station and was seen to contain Khyam and Shujah. Vitam was seen travelling on the M23 along with a

green Corsa, registration which

occupants. The vehicles travelled to Slough.

15.05 The vehicles then travelled towards Uxbridge and stopped in High Street, Uxbridge. One of the occupants of the Corsa got out and went to sit in the Vitam. Khyam spoke to the driver of the Corsa before Shujah got into the Corsa and the two vehicles drove off. The rear passenger of the Corsa had a blue I Jelly Hansen hat. The vehicles travelled into London

16.38 The vehicles parked in St George's Avenue Khyam, Azhar Khan and Shujahh entered Designers, Green Street, Upton Park with three others. Shujah and Azhar Khan were also seen at Raman Cash and Carry in Green Street

19.11 Khyam, Shujah, Azhar Khan and the entered Islamic Bookshop, 13 Green Street, Upton Park

19.32 All six men walked down St. George's Avenue, and three then got into each vehicle. They were videoed doing so. The vehicles then drove in Upton Lane, along the A406 and towards Slough. The was driven by Khyam, with Shujahh and Khan as passengers

The Vitam arrived at 56 Hencroft Street. The three

men from the Corsa approached the Vitam and spoke to its occupants.

Vitam travelling to I Iencrolt

and the: Corsa

with three males. They walked 10 their vehicle, the

departing cast. At 12.13am.; Khyam performed an anti-surveillance manoeuvre

6. EVIDENCE OF MOHAMMED JUNAID BABAR

6.1 In his first statement, Babar deals with the activities of a man he knew as Ibrahim.

6.2 Babar says that it was at the end of July 2003 that a further group arrived to go to the camp. Khyam and Babar collected them from the airport. They were Jawad Akbar, Ahmed Ali Khan and Akib, and two others who Q had asked them to collect. These two were called Ibrahim and Zubair and came from Bradford.

6.3 Babar directed them to Amin, with whom Khyam had been keeping in contact [Stt.p.1911]. Babar's recollection of this is confirmed by PISCES records, which show that Akbar arrived in Pakistan on 25th July 2003, on flight GF-434 [Exhibit ARJ5, Ex.p.550TI.

6.4 Akbar stayed with relatives in Rawalpindid and Akib with relatives in Muree.

The others stayed with Babar, Ahmed Ali Khan showed Babar a GPS navigation system he had brought with him, along with solar panels that he said W.Mahmood had given him.

6.5 Khyam, Ahmed Ali Khan and Babar took to the camp with them the explosive ingredients that had been assembled at Babar's flat. Due to the distance involved, they, Akib, Ibrahim, Akbar and Zubair all stayed at the Capital Hill

III

. Unfortunately the hotel no

the records for the

relevant period I Malik

They then travelled in a rented car 10 Malakand. Khyam bought some

ammonium nitrate on the

When they arrived at the camp they round that

those already there were dissatisfied with the amount of shooting that they had been able to do. The Mulana's son, Zubair said that this would occur on the last day to prevent the locals alerting the authorities to their presence. In the meantime, they undertook physical training and were shown by Garcia how to dismantle and reassemble a weapon [stt.p.1912J.

6.7 While, at Khyams request, Shujah kept everyone else away, Khyam, Garcia, Babar and Ayoub used the ammonium nitrate, aluminium powder and a detonator to cause an explosion which worked on the second attempt. Khyam was satisfied with this, and did not try the other recipes in his possession. He dumped the remainder of the chemicals, save for those that he took away with him [stLp.1926]. The focus was on the use of ammonium nitrate, aluminium powder and a detonator. As promised, on the last day of the camp all fired J\K47s and other weapons. This was all videoed by Babar, and Riaz planned to edit this video for propaganda purposes [stt.p.19131.

6.8 At the end of the camp, Imran and Riaz stayed behind to receive sniper training from the doctor previously mentioned by Atif but the others returned to Lahore in two buses. Babar was entrusted by Khyam with getting all those who attended the camp safely out of Pakistan. He arranged tickets for Zubair, Ibrahim and Shujah. PISCES shows that Shujah left Pakistan on is" August 2003 [Exhibit ARJ6, Ex.p.5509]. Garcia wanted to go back to the Avari hotel. On an earlier occasion he and Khyam had met two girls at a restaurant there and been photographed.

6.9 In a further statement [p.2405] Babar confirms that the person he called Ibrahim was MSK. He confirms that he met MSK at the airport with Amin. They went to see the uncle of one of them in Rawalpindi. Babar next saw them at Arnin's flat in Islamabad. It was on this occasion that Khyam told them

about the training

in, Ahmed All Khan and Habnr were also present.

said that he had previously received weapons training at a camp in Kashmir.

6.10 Bubar next saw them at the Capital Hill Lodge Hotel in Islamabad before they

all set off for the camp. On the

to the camp, MSK travelled in the back of

a pick-up truck with Bubar and Khyam. At the camp he talked to everyone and tired an AK47 and a light machine gun.

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