March 17
The defendant, wearing a disguise, left a hoax bomb in a bag on a bus in Rotherham, which was destroyed in a controlled explosion. He met former colleagues when dressed as an Arab, speaking Arabic then showed them a selection of small explosive devices usually used to alert railway workers of an advancing train. Police were called and he was arrested. They found components of an explosive at his accommodation and evidence he had sourced the outstanding chemical he would need to make the explosive on the internet as well as how to make explosives. They also found evidence he had accessed a large amount of material relating to the Iraq war, insurgency and terrorism, including extremist material, using devices. They found footage the defendant had filmed of the bombing of the Iraq parliament and the murder of an Iraqi parliamentarian and notes on bombs with reference to Rotherham. The defendant was charged with placing an article with intent (count 1) and engaging in the preparation of an act of terrorism (count 2). He denied any intention to engage in terrorist activity or access bomb-making websites. A clinical forensic psychologist did not diagnose the defendant with a mental disorder or learning disability but said he was very immature, psychologically vulnerable and may have been acting out the fantasy of being an Islamic militant without intending to undertake anything harmful, but that was not the defendant’s defence. Immediately prior to the trial he said the abnormalities in the defendant’s personality were intensifying and he was in danger of developing a serious mental illness. At trial, it was the Crown’s case that the defendant was not a harmless fantasist but a dangerous man who was poised for action. The defendant gave evidence that he had an innocent interest in military matters and was prone to engaging in childish behaviour, considering the hoax bomb to be a joke. On count 1, the issue was whether the defendant intended others on the bus to believe the hoax bomb was genuine and likely to explode causing damage or injury. On count 2, the jury needed to be sure the defendant intended to commit terrorist acts and, with that intention, acted in a way that was preparatory to committing terrorist acts. The defendant was convicted and appealed against conviction. A clinical forensic psychiatrist made a post-trial diagnosis of autistic spectrum disorder and said the defendant’s absence of an understanding of his impaired appreciation of the social world and his fixed interests which were abnormal in their intensity and focus had impacted on the conduct of his defence. The Criminal Cases Review Commission referred his appeal to the Court of Appeal (Criminal Division) on the ground that a post-trial diagnosis of autistic spectrum disorder might have affected the safety of his conviction. He applied for permission to rely on fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968.
On the appeal—
Held, appeal dismissed. The potential impact of the diagnosis of autistic spectrum disorder on the actions resulting in the defendant’s conviction for the placing of the hoax bomb was minimal as the material was available at trial. If an expert was called, his or her evidence could not be limited artificially by the party calling the witness. Once in the witness box the psychologist or psychiatrist would be available to be questioned about all relevant matters. The defendant could not call evidence that would have contradicted his own case directly. The critical conclusions by the doctor that the defendant might not have appreciated the impact of his actions on others had been revealed in the pre-trial reports in 2008. That area of evidence was available to be developed if the defendant’s legal team at trial had wished to pursue it. It was explicable that the defendant’s counsel decided not to call an expert who might have given evidence which contradicted a fundamental aspect of the defendant’s case. If experts had been called, the defendant would have run the risk of allowing the Crown to advance the theory that, contrary to his case, he indulged in terrorist fantasies and turned them into reality. Whatever the diagnosis, the defendant understood the potential impact of the hoax. The potential impact of the diagnosis on the defendant’s ability to understand the potential consequences of pursuing his interests in terrorism to the extent that he did was irrelevant to the issues the jury had to decide, which related to his intention on both counts. A defendant would only be allowed to present a factual case that was inconsistent with his instructions and testimony at trial in exceptional circumstances. Cases involving a post-trial diagnosis of autism in which appeals were allowed on that basis laid down no binding principles to be applied in other cases but turned on their own facts. When following a trial a diagnosis of autism was made and consideration was given to mounting an appeal on that basis, it was important to focus on the issues in the case and the extent to which the new diagnosis related to those issues. Additionally, there needed to be careful examination as to whether the relevant behaviour or behaviours might have been revealed in expert reports in advance of the trial, possibly in the context of a different diagnosis, which might overlap with the new diagnosis (paras 34, 40–41, 42, 47, 52, 53, 55).
Jonathan Rose (assigned by the Registrar of Criminal Appeals) for the defendant.
John Price QC (instructed by Crown Prosecution Service, Appeals Unit, Special Crime and Counter Terrorism Division) for the Crown.