Hussain [2018] EWCA Crim 2673
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Regina v Zahid Hussain [2018] EWCA Crim 2673 was a renewed application for leave to appeal conviction and sentence following refusal by the single judge. On 25 May 2017 in the Crown Court at Birmingham before Sweeney J and a jury, Mr Hussain, then aged thirty, was convicted of making preparation for terrorist acts contrary to section 5(1)(a) of the Terrorism Act 2006. On 9 November 2017 he was sentenced to life imprisonment with a minimum term of fifteen years pursuant to section 269(2) of the Criminal Justice Act 2003. A hospital and limitation direction under section 45A of the Mental Health Act 1983 was made such that Mr Hussain was removed and detained at the Tamarind Centre subject to special restrictions under section 41 of that Act. A forfeiture order was also imposed.
The facts arose from events on 9 August 2015 when Mr Hussain was seen behaving suspiciously by local residents in Birmingham and the police were called. When officers approached, he attempted to run inside his house. Police recovered a crowbar and a knife from behind a wall on which he was sitting. From his person were seized papers containing a list of chemicals in his handwriting, a map of the Alum Rock area and a green fairy light with protruding wires.
A search of his home recovered numerous items from his bedroom including bottles of hydrogen peroxide, numerous fairy lights, some modified, a modified wireless doorbell, a modified mobile phone, five modified empty pen cases and a pressure cooker packed with a white powder and shrapnel. The map found on Mr Hussain included a cul-de-sac which bordered the London to Birmingham railway line. One manhole cover was marked on the map. The occupier of another premises in that road reported that a second manhole cover in his garden had been disturbed. CCTV footage showed that on three occasions Mr Hussain had entered the garden in the early hours and on the third occasion was seen lifting the manhole cover and entering the drain beneath. A book on guerilla warfare recovered from his address was marked at a section dealing with attacks on railway lines.
The list of chemicals seized contained a recipe involving three chemicals which, when combined, produced a primary explosive known as HMTD. Evidence showed that Mr Hussain had researched and purchased each of these three chemicals. The hydrogen peroxide had been further heat-treated to increase its concentration nearer to that required by the recipe. The quantities set out in the recipe would have produced a significant quantity of HMTD. A further column of ingredients appeared to contain the constituent parts for the manufacture of two further explosives, TATP and ANFO.
The pressure cooker was found to contain 3.8 kilograms of powder consisting of urea mixed with an accelerant such as diesel. Whilst urea could be used in the manufacture of explosives, its combination with a fuel as in this case would not have formed an explosive. Urea could be used in coolpacks, of which Mr Hussain had purchased a number during 2015. Coolpacks sometimes contain ammonium nitrate, a substance that could be mixed with diesel to form a viable explosive. It was this combination that featured in the recipe for ANFO contained on the list. The cooker also contained a total of 1.6 kilograms of metal objects such as screws and nails.
Four fairy lights found at the address had been modified such that the surrounding casing had been filled with a mixture of chlorate-based match-head substance and sugar which formed a low explosive which would ignite if exposed to a heated element. The modified fairy lights were intact and constituted viable explosive igniters. Sufficient match-head or sugar composition was found in a separate box to create in excess of sixty igniters. One of these igniters could have been connected to the modified wireless doorbell to create a viable means of remotely initiating the igniter which could in turn be used to initiate certain types of explosive.
The computer seized from Mr Hussain showed numerous internet searches for materials that could be used in bomb making. There were purchases of books about warfare and visits to radical Islamic websites, to one of which he had made small donations several years earlier. Police divided the almost two thousand significant images found on the computer into three categories: ISIS related, injuries from Middle East conflicts and other terrorist related imagery. There were also 1,851 occurrences of the word Isdarat on his computer history, this being an Islamic extremist television website.
Medical records showed that in 2015 Mr Hussain wrote to his general practitioner complaining of feelings of helplessness and uncontrollable anger. He stated that it had been a longstanding problem which he could no longer cope with. He attended an appointment a few days later and it was noted that he complained of a low mood and hearing voices. He was given an urgent referral to a mental health team but did not attend that appointment.
In interview Mr Hussain admitted to making the cooker pressure device a month or two prior to his arrest. He believed that it contained an ANFO explosive and was capable of causing some devastation. He had not intended to detonate the bomb but instead was going to sell it to the Sun newspaper. It was not intended for killing British civilians or soldiers. He said that the modified fairy lights and doorbell were experiments. He had intended to put a fake detonator into the pressure cooker when selling it to the newspaper. Regarding his mental state, he said he was on medication. He had become increasingly paranoid that ISIS, the UK Government and the CIA were after him. This paranoia had led to his strange behaviour. He had become bedroom radicalised watching material on the internet but did not support Islamic extremist groups. Since his early twenties he had suffered from anxiety, depression and paranoid schizophrenia which he had self-diagnosed by researching symptoms on the internet.
Following the interview, police contacted the Sun newspaper which denied that it had had any contact from Mr Hussain regarding a pressure cooker bomb. On 26 June 2015 the paper had run a story about another man who had unwittingly attempted to recruit an undercover reporter in a plan to use a pressure cooker bomb in an attack on an armed forces parade. Computer evidence showed that Mr Hussain had an association with that man, Junaid Hussain, through his Twitter account.
The prosecution case was that the evidence, in particular that found on examination of the desktop computer, showed that Mr Hussain had been radicalised. He had the intention ultimately to commit an act or acts of terrorism. The preparation towards that end included acquiring viable recipes and ingredients for making high explosives, making a substantial pressure cooker bomb which he clearly believed contained ANFO, making four viable improvised explosive igniters and modifying a phone and a doorbell for use as a remote detonator. The defence case was that aspects of the evidence, including his seeking help from his general practitioner in 2015, were at odds with Mr Hussain being a terrorist. His strange behaviour could be explained by him believing himself to be acting upon subliminal messages. There was nothing to suggest any specific target such as a railway line. An interest in Syria and ISIS did not mean Mr Hussain was a terrorist and the jury should be cautious about reading too much into what he said in interview about becoming radicalised. It was not possible to say who had viewed some of the website material. There was no evidence that Mr Hussain had ever tried to make any of the primary high explosives. None of the books in his possession was banned. Thus the Crown had failed to prove its case. Mr Hussain did not give evidence.
The trial started on 24 April 2017 and on Monday 22 May the parties’ closing speeches were completed. The trial adjourned to Wednesday 24 May due to the unavailability of a juror on the Tuesday. On the night of 22 May, however, the bombing of the Manchester Arena occurred. Whilst Mr Hussain had instructed his legal team not to seek to discharge the jury, the defence nevertheless invited the judge to consider whether a fair trial was still possible in the light of the immediacy of the Manchester bombing, its consequences, the press reports that a bomb with shrapnel in it had been used and the similarities with what the prosecution asserted was Mr Hussain’s intention in this case. A number of authorities were relied upon including R v Abu Hamza [2006] EWCA Crim 2918, [2007] 1 Cr App R 27.
The judge ruled that it was his duty to ensure Mr Hussain had a fair trial before an impartial jury. He had had the great advantage of observing the jury throughout the trial and seeing their obvious understanding of the importance of conducting themselves as impartial judges of the facts. It had been agreed with counsel that two questions should be asked of the jury for each of them to answer in private and in writing after the judge had addressed them. The first question asked whether any juror had any connection with those involved or affected by the Manchester incident and if so to write down the nature of the connection. The second question asked whether, in the light of the events in Manchester, any juror now felt unable to abide by their oath or affirmation to try the defendant faithfully and give a true verdict according to the evidence. Ten jurors answered no to both questions. Two elaborated to some extent, one in particular as to the first and the other as to the second. Both indicated in clear terms they were able to abide by their oath or affirmation and counsel, having seen their answers, agreed that they did not give rise to any concern.
Against the background of the judge’s own experience over the years, his observation of these particular jurors over a number of weeks, the answers to the questions and the judge’s confidence that the jury would be reinforced by the strong directions he intended to give, the firm conclusion was reached that it would still be possible for Mr Hussain to have a fair trial. The judge concluded that there was no doubt whatsoever that that would be the case. The application to discharge the jury was refused. In his directions the judge told the jury that they would reach their decisions based only on the evidence that they had heard and any common sense conclusions they thought right to draw from it. Neither media nor internet reporting nor speculation could have any part to play in their deliberations, nor could emotion. Given recent events in Manchester, that was a vitally important direction. The events had nothing to do with the defendant or his case and must be put out of the jury’s minds when deliberating and must not be allowed to have any influence or bearing on the verdict in any way. The judge underlined that what was required was a cool, calm, careful and dispassionate consideration of the evidence and the courage to return a true verdict whatever the consequences might be.
The primary ground of appeal was that the judge erred in refusing to discharge the jury following the terrorist bombing in Manchester. It was argued that the enormity of that event must have an effect on the jury and thus the safest course of action would be to discharge the jury and order a retrial some months thereafter. In refusing leave to appeal, the single judge made the further point that there was no suggested connection between Mr Hussain’s case and the Manchester atrocity and there was no evidence, despite the care taken by the judge, that the jury was improperly influenced.
The Court of Appeal concluded that the single judge was correct to reject this ground of appeal. Sweeney J conducted the examination of the issue with immaculate care and his attention to the risk could not be questioned in any way. His approach to the jury was itself beyond reproach or challenge. It could not be correct that the occurrence in some other part of the United Kingdom of a terrorist atrocity should, of itself, bring to an end a trial for terrorism in some other place. If it did so, it would be to encourage terrorism during the course of trials that take place. There was nothing in this ground of appeal.
Since the refusal Mr Hussain had advanced a number of additional grounds of appeal relating to arguments and evidence not relied upon at trial. He also challenged the conduct of his solicitors. He waived privilege and the court had the benefit of a detailed response to his allegations from those solicitors. To such extent as Mr Hussain sought to advance fresh evidence, there was no reasonable explanation for his failure to have adduced that evidence at trial. It was in any event contrary to admissions made in interview that he had become bedroom radicalised. The other grounds were the subject of response by the Crown in submissions dated 19 September 2018 which the court found compelling.
In relation to Mr Hussain’s denial that he was following, contacting or retweeting messages from Junaid Hussain, the Crown relied on a piece of paper found in his possession on arrest which contained the message details of a number of isolated ISIS related individuals, including Junaid Hussain. There was evidence of moderate support from a handwriting expert that the note was written by Mr Hussain. It could not be said, even if Mr Hussain was right about his submission, that it undermined the safety of the conviction. Similarly, in relation to his use of his computer and who had visited Isdarat television. Having considered in depth what Mr Hussain asserted, the response from the Crown and his solicitors, there was no merit in any of these grounds. The application to appeal against conviction was refused.
Mr Hussain also sought leave to appeal against sentence. When sentencing, the learned judge outlined the facts and concluded that, psychiatric issues aside, culpability in Mr Hussain’s case was extremely high as more than one explosion was clearly intended and the harm intended was loss of life or serious injury. The starting point therefore, in accordance with the authorities and in particular the decision in Kahar [2016] EWCA Crim 568, [2016] 1 WLR 3156, was life imprisonment. Mr Hussain, said the judge, was clearly deeply radicalised and over a period of at least nine months was strongly committed to what he was doing, aspects of which were quite sophisticated, albeit that the bomb made was actually inert contrary to his intentions. It was common ground that the offending was not a precise fit for any of the levels of offending identified in Kahar. In view of the findings of fact, however, the conclusion had been reached that he was a dangerous offender and that his offence was on the borderline between the bottom of level three and the top of level four identified in that authority.
The judge then dealt with the psychiatric issues and summarised the findings of the psychiatric evidence from Doctors Maganty, Memon, Joseph and Cumming, the last of which was obtained following conviction. He summarised the matters that the court had taken into consideration as set out in the authorities and concluded that, by reference to all of the evidence, there was some doubt as to the genuineness of Mr Hussain’s mental illness such that, with the judge not being sure on that issue, he would proceed on the basis that Mr Hussain was suffering from paranoid schizophrenia at the time of the offence and continued to do so. It was, however, certain that his offending was not wholly attributable to that disorder and the principal driver for his offending was voluntary bedroom radicalisation. The judge went on that even if the offence was in significant part attributable to the disorder, he was certain that against the overall background the disorder could be appropriately dealt with by a direction under section 45A of the Mental Health Act 1983. There was no sound reason for departing from the usual course of imposing a punitive sentence. The judge concluded that Mr Hussain was a dangerous offender and, in view of the level of the danger that he posed and the impossibility of predicting when it would come to an end, it was an appropriate case in which to impose a sentence of life imprisonment with