20
The Fertiliser and Ricin Conspiracy Trials
The King, his crown placed squarely upon his full-bottomed wig, sat alongside the stern-faced Queen. They were to preside over an important trial. The jury was already in place busily assembling slates and pencils. The prisoner, Jack, ‘the knave’, stood in chains before them. As soon as the charge was put (the theft of special culinary delicacies), the King called for a verdict. Not yet, not yet. No evidence had been heard. The first witness had trouble with dates, the second refused to give evidence and the third knew nothing. The King, exasperated, repeated his demand for a verdict. The Queen lost patience. ‘No, no. Sentence first, verdict afterwards.’ ‘Stuff and nonsense,’ said the third witness loudly. Her name was Alice, and the King had already tried to remove her by spontaneously inventing rule 42 – anyone over a mile high had to leave court immediately. The Queen trumped this by ordering Alice’s summary execution. ‘Off with her head!’ ‘Who cares for you?’ said Alice (who had grown to her full size by this time). ‘You’re nothing but a pack of cards.’*
How much easier it would have been to dispense with the trial – not be troubled by a lack of evidence, a jury of subservient small animals – and carry out the punishment without further ado. Quicker, cheaper and effective. Best of all, no footling lawyers.
For Alice, who awoke at just the right moment, it was but a curious dream. For me, however, the incessant battle to preserve the centrepiece of our system of criminal justice – the hard-won right to trial by your peers – against the ever-present preying mantra of political expediency has been an enduring reality throughout my working life.
It was the Danes who evolved the twelve-man jury system, which seems then to have been borrowed by the English, who exported it to the rest of the world and now claim to have invented it. One possible precursor to the English jury trial was the Lafif in classical Islamic law and jurisprudence, which was developed between the eighth and eleventh centuries in the medieval Islamic world. The Lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict about matters that they had personally seen or heard. Quite where the number twelve came from is elusive. Trevor Grove muses that it might be from the twelve apostles and the twelve tribes of Israel.1 Maybe it’s got something to do with twelve months of the year, or the twelve days of Christmas, or the twelve times table, or maybe it’s just an early disaffection with decimalisation.
Back in England in 1215, in the reign of King John, Article 39 of Magna Carta declared: ‘No freeman shall be taken, imprisoned . . . or in any other way destroyed . . . except by the lawful judgment of his peers, or by the law of the land. To no one will we sell, to none will we deny or delay, right or justice.’
This document was really for the benefit of the landed and property-owning classes, but it has nevertheless provided a very useful fountain from which justice has flowed since, and it did put an end to trial by ordeal: fire, water and battle.
Significant landmarks in jury development came later when juries began to stand up to the judges and the courts: for example, against the notorious Star Chamber under the tutelage of kings, which was abolished in 1641, while the radical reformer and Leveller John Lilburne risked his life from 1637 (when he was only twenty-three years old) until his death twenty years later in defence of rights for freemen, including the independence of juries, which was incorporated into his Agreement of the People (1649): ‘No judgment touching life, liberty or property but by jury trial.’ Standing trial for his life four times, Lilburne spent most of his adult years in prison and died in banishment.
Gradually, over time, rights to sit on a jury were extended to women (in 1919) and to all on the electoral register except those involved in the law – such as police or barristers – but recently that disqualification has been dropped, and all except the mentally disordered or those whose previous convictions resulting in imprisonment can now be called to sit. So we have a truly democratic method of adjudicating at trial, but one that unfortunately many have sought to interfere with, weaken or remove altogether.
In September 1978 I was involved in a trial known as the ABC case. Why ABC? These were the initials of three individuals: Crispin Aubrey, who then worked on Time Out, the London listings magazine (and now an organic farmer in the West Country); my client John Berry, then a social worker who had been a corporal in Signals Intelligence in Cyprus (and now a probation officer); and Duncan Campbell, now scientific investigator and celebrated journalist, but then merely a scientific prodigy. They were charged under the Official Secrets Act because Duncan had published an article revealing for the first time the existence and purpose of GCHQ, the Government Communications Headquarters in Cheltenham, and as a consequence all hell broke loose. This was a very serious matter because they stood to get sentences of up to thirty years,2 and the trial also exposed the practice of secret jury vetting by the prosecution.
In those days the names and addresses of the jury panel were available to all parties, and the prosecution had the power of ‘stand by’, which meant that without showing cause they could ask potential jurors to stand down and not serve. At the same time the defence had a limited power of peremptory challenge on jurors, again without cause. However, before the ABC trial the prosecution was clandestinely receiving intelligence from the security services with regard to potential jurors. We on the defence side were of course left completely in the dark.
In 1979 a group of young people, one of whom was the writer Ronan Bennett, was charged with a conspiracy to rob, allegedly for political purposes. The group was dubbed ‘Persons Unknown’ because the charge of conspiracy customarily includes the phrase ‘with persons unknown’ in the indictment, allowing the prosecution to keep their options open. I was instructed by James Saunders for one of four defendants in the jury trial, including Ronan – all of whom were acquitted. The judge ruled that the defence could itself make ‘reasonable and necessary inquiries’ about potential jurors with the benefit of legal aid. I thought this was a victory at the time, but I’ve changed my mind, and now I don’t think that either side should be privy to any information about the jury panel. One of the reasons is that one juror who had been rejected by the Crown had been excluded on a spurious basis. He had written a pamphlet which had the words ‘state’ and ‘individual’ in the title. When the juror subsequently complained, it turned out he was a tax consultant and the leaflet contained advice about tax avoidance and nothing about political subversion.
What happens now is that if the trial involves highly charged or emotive events in which members of the public may have been caught up – such as bombings or disasters – or concerns particular organisations like the police or army, then the judge can be requested by either side to ask the jury panel if any of them (or their close friends or relatives) have been involved in any way, or are aware of any impediment to their returning an impartial verdict, with a view to excluding them. Under these circumstances jurors are remarkably honest and come forward if they feel they shouldn’t be sworn in for that particular trial.
For some, the jury presents a real threat. The customary carping runs along the lines that jury trials take up too much time and money; an alternative tack is to suggest that juries don’t understand complicated issues, or that they can be beguiled by fast-talking advocates. Then there is the old school of thought, which can barely contemplate the possibility of working-class, unemployed or black people appearing in a randomly chosen jury. Above all else is the terrible realisation, by those who regard themselves as having a monopoly on the truth, that juries might just take a different view and acquit. Such decisions are speedily characterised as ‘perverse’.
In case you’re thinking that this is some adventure in Wonderland, let me assure you that it’s not. These are sentiments which have littered the legal landscape over the last forty years, and are expressed by all shades of established opinion, Tory and New Labour alike.
Principles stoutly supported and espoused in opposition are ditched with unseemly haste once the mantle of power is donned.
At the beginning of the 1970s, Lord Diplock undertook a review of the criminal-justice system in Northern Ireland at the height of ‘The Troubles’. For me, rights matter most when the threat is greatest. Not for Diplock. He recommended the abolition of jury trial for a whole raft of offences, and in the process criticised lawyers and their unyielding adherence to what he regarded as ‘technical’ rules excluding unreliable confessions.3 The fear I had then was that governments were using Northern Ireland as a testing ground for oppressive measures, to be imported to the mainland should they become necessary. I was part of a mission on behalf of the Haldane Society with Helena Kennedy, Nick Blake and Richard Harvey, examining the operation of this emergency legislation, and I remember standing with Gerry Adams in a doorway encircled by bullet holes from an assassination attempt the day before. Richard got over-excited and camera-happy outside Springfield Barracks just before we were due to have tea with the Lord Chief Justice, and he and his camera were temporarily detained at Her Majesty’s Pleasure. Whatever else could be said about the lack of juries in Northern Ireland, having forthright talks over cucumber sandwiches with the Lord Chief Justice would never have been countenanced in England.
Although the number of trials heard at the Diplock courts dropped dramatically over the intervening years (to forty-nine in 2005), incredibly the courts remained legal until the Justice and Security (Northern Ireland) Act 2007 came into force, an act that nonetheless allows the Northern Ireland Director of Public Prosecutions to keep his options open by retaining a provision to issue a certificate in a case where it is felt a non-jury trial is appropriate.
By 1982 Lord Denning had advocated the end of random selection of juries from the electoral register, in part motivated by the verdicts in a Bristol riot trial and his conclusion that black jurors would never convict ‘one of their own’. It was observations of this kind in his book, What’s Next in the Law,4 that forced his early retirement. This was the same judge who felt that the attempts by the Birmingham Six to pursue a civil action against the police presented ‘an appalling vista’.
In 1986 Lord Roskill proposed that complex fraud trials should be conducted by a judge and two lay assessors, constituting what might be termed a professional jury. And then in 1988 a trio of senior legal figures led by Lord Hailsham, a former Lord Chancellor, demanded fundamental changes to the jury system. Hailsham thought it commanded more public support than it deserved, and his view was that London juries acquitted more people than they should because of their make-up. He went on to say: ‘I do believe that we used to get a better class of jury before the abolition of the property-owning qualification.’5
During the dying days of the last Conservative government, Home Secretary Michael Howard wanted to reduce jury trial still further, and intended to do this by removing a defendant’s right to choose this mode in what were known as ‘hybrid’ offences, which could be tried ‘either way’ – meaning either with a jury or without. The idea emanated from a recommendation by the Royal Commission on Criminal Justice under Lord Runciman in 1993, and was not supported by Jack Straw and Labour while they were in opposition. However, once Labour had been elected in 1997, the proposal reared its head again and was assessed to affect about 18,500 people a year. This was fought tooth and nail for over a year, and the government even threatened to use the Parliament Act to get it through, if the House of Lords stood in the way – at which point my close friend and colleague Baroness Helena Kennedy passionately marshalled the forces of reason and sense.
Undeterred, the Labour government has pursued other proposals to curtail the right to jury trial in the Criminal Justice Act 2003.6 It has resurrected the complex fraud argument by allowing the prosecution to apply to a judge for a trial to be conducted without a jury. It also included a provision in the 2008 Counter-Terrorism Bill to prevent juries being summoned in certain inquests where it was not deemed to be in the public interest. This was dropped after the government received a well-deserved drubbing in the House of Lords over its plans for detention without charge for up to forty-two days, but with its usual disregard for reasoned opposition the government has reinstated these provisions in the Coroners Bill 2009.
On top of all these attacks, there has been a slow and often undetected diminution of the number of offences capable of being tried by a jury. This is accomplished by passing anodynely titled statutes (far more by Labour than by any previous government) in which there are clauses tucked away that knock off a few more offences which can be tried by a jury in the Crown Court. By now the vast majority of criminal justice, over 90 per cent, is dispensed in the lower courts by magistrates and district judges without a jury. At the same time New Labour has managed to create a further 3,600 new criminal offences, most of which are not susceptible to jury trial.
Yet when it suits governments, the good sense of juries is invoked as one of the arguments for relaxing long-standing rules intended to ensure the integrity and reliability of evidence. Once termed the ‘golden thread of British justice’ by judges and practitioners alike, the right to silence has been replaced by the ‘adverse inference’: if on arrest, on interview or in court a suspect refuses to speak, the jury is entitled to draw an unfavourable inference of guilt. Previous convictions and bad character are now more readily admissible, and in addition a wide range of hearsay evidence is allowed.
Despite all of this, my love affair with jury trial has remained untarnished throughout the years that I’ve had the good fortune to be able to address them. What I have found, and what I believe is unquestionable by anyone who has served upon a jury, is that jurors set about their task with exemplary responsibility and a conscientious attention to detail that knows no bounds. Ask anyone by whom they would prefer to be tried when it comes to something serious or a reputation is at stake, and almost without exception they will choose twelve fellow citizens.7
Many, many years ago when the Chelmsford Crown Court – or Quarter Sessions as it was known – was held in the Shire building in Chelmsford High Street, I had a short two-day burglary case which was relegated to a small courtroom at the top of the building, where the jury was housed on some fairly perfunctory benches next to the ones meant for the public. At the end of the trial the court clerk asked the jury to stand while the jury bailiff swore the usual oath to keep them in some private and safe place, before leading them to their room to consider their verdict. An hour later a note came from the jury with a question – a perceptive enquiry, and not one that anyone had thought to ask during the trial. The questioner at Chelmsford wanted to know whether the jury had to be sure that the defendant had stolen all the property listed on the indictment.
In those days, each time a jury returned to court the clerk would read out their names to check all were present and correct. This time they certainly were – plus one, making thirteen. None of us – especially the judge – could quite believe how we’d managed to get through a trial without noticing there were thirteen jurors, but in fact there hadn’t been. On the second day of the trial a member of the public with nothing better to do on a rainy morning had sat himself down on the benches next to the jury box. When the clerk had asked the jury to stand before retiring, he stood up with them, and when they were then asked to follow the jury bailiff to the jury room, he followed as well. Once in the room, none of the jurors thought there was anything exceptional in this and merely took it as part of normal procedure – like an independent assessor joining them at the end of the case. And it was number 13 who had thought of the pertinent question. Unfortunately, we had to start all over again with another jury in another courtroom.
(This was by no means the first time in my experience that a question from the jury has had important consequences for a case, and I recall one trial where my cross-examination of a police officer concerned the accuracy of times that he claimed to remember with consummate recall to within a few seconds. As he was about to leave the witness box, a juror jumped up and asked if he could put one question, and this was permitted. The juror asked the police officer: could he recollect the exact time he entered the witness box? No chance.)
There is a serious point behind all this. One of the ways of easing the burden on jurors in long trials lasting several weeks, or even months, could be to have a number of standby or reserve members who are there from the beginning, hear all the evidence and can step in if one of the twelve falls ill. This would prevent the need to discharge the jury if the numbers fall too low for even a majority verdict: for example, below ten. In some parts of the USA such a system has been adopted and the reserves are called ‘alternates’.
On a clear day with a fair wind behind them, I like to think that the majority of trial judges in front of whom I’ve appeared would accept that twelve minds are better than one, and that the twelve are less likely to be influenced by sanguine thoughts engendered by the case-hardened experience of a professional. The most obvious benefit, however, is that jurors are not agents of the state: they are not beholden to anyone or anything other than their own consciences, and their deliberations are beyond the reach of state interference. In criminal trials they return a simple verdict of either ‘guilty’ or ‘not guilty’. They do not have to give reasons, although it has become abundantly clear in inquests that, if required to do so, they are more than capable of formulating detailed answers or of completing a comprehensive questionnaire.
Rather than restricting the role of juries, I think the time has come for an expansion of their work and recognition of the amazing contribution they make to our system. If you think about it, it’s one of the few ways in which a citizen can perform a public duty and reach a decision that has both meaning and political significance. Public access and public participation are vital for any system of justice to attract confidence and trust, and it’s mildly ironic that while the Labour government is eroding this at home, it is more than willing to extol its virtues on diplomatic trips abroad. Soon after his election in 1997 Tony Blair paid a visit to China, during which he exemplified the fairness of British justice with a mock jury trial, performed by British barristers in front of a Chinese jury and officials. It was a fitting demonstration of People’s Justice – one of the most effective democratic processes our society permits.
If we are to accord this status to our citizens, they are due a far higher degree of respect and gratitude. On the practical front, while a number of improvements have been made over the last few years, it has been a painfully slow business, and has often been brought about by jurors themselves complaining about the conditions under which they labour. For example, in one trial they refused to continue until their remuneration was increased, and in another they wouldn’t return to court until their food was more edible.
Imagine receiving a summons to serve on a jury for the first time. This has probably either happened to you or at least you know someone to whom it has. How much do you know about the process? Virtually nothing. You worry about what is involved: how long a case will last; whether you can get out of it because of your job, your health or a pre-booked holiday.
When you arrive at the court building, it’s all a bit forbidding. You often hang about for hours, sometimes days, in facilities that can be fairly rudimentary in the older establishments. The court staff are usually very kind and understanding, but nevertheless it can be an irritating and frustrating experience.
If you do finally make it into court, you will then have the opportunity, if you wish, to explain to the judge why you need to be excused because of work, family or medical commitments. The judge will scrutinise each explanation carefully and will not accede to a request unless it is absolutely vital, because jury service is such an important public duty. The court clerk then opens a small box that contains cards with the names of jurors on the panel; a card is then selected at random and the name called out, until there are twelve.
Once you are selected to serve on a jury, the case is opened and the first witnesses called before you know where you are. The jury box where you sit is invariably cramped. In front of you is a tiny strip of wood about twelve inches deep, which masquerades as a kind of desk, and somehow you have to balance your notebook, pencil, numerous files (if the case has more than one exhibit), a glass and carafe of water on this narrow ledge.
This situation stems from the days when it was hoped that juries would only be seen and not heard; when they were almost considered to be tame voyeurs, like the creatures in Alice’s jury, eating from the judicial hand that fed them. ‘Don’t write notes and don’t ask questions’ were the admonitions directed at juries by trial judges when I first began at the Bar.
Thankfully we’ve moved beyond that frame of mind, but the set-up itself has not. It could all be very different, especially given recent technological advances. There is no longer a need for anyone to keep a running note of the evidence; no need to depend on the judicial pen or counsel’s fallible recollection. All evidence can now be recorded and transcribed via a system known as Livenote. As a participant speaks, his or her words are reproduced on computer screens allocated to the jurors, the judge, the lawyers, the defendant and the witness. This means that during the examination of a witness anyone can scroll back and check what has already been said by the witness, as well as by those who have gone before. It is a verbatim account, which can be made available on a daily basis either on disk or in hard copy, and the advantages are manifold – for barristers when examining witnesses and addressing the jury in speeches, for the judge when compiling his summing-up, and most significantly for the jury, who can take a complete record with them when they retire. No more wasteful arguments about who said what when. It is super-efficient and in the long run saves time, money and space.
Besides live testimony, all documentary material – and exhibits in particular – can also be reproduced on a separate screen and made available on disk. The screen itself can be split in a number of different ways to enable comparisons to be made with other documents, and passages of importance can be enlarged and highlighted. Where it has been necessary to reconstruct a document or, more significantly, the scene of an event, this can be done to great effect. In the Bloody Sunday Inquiry witnesses could be visually taken back to the streets and houses as they were in 1972. In the Diana/Dodi inquest witnesses could be transported to the Alma Tunnel and its approach road. Specific points or areas of interest can be identified and called up as ‘hot spots’; it is then possible to swivel the graphic within a 360-degree arc in order to establish what lines of sight are available.
In an increasing number of investigations, film of one sort or another becomes relevant. Either a CCTV camera has captured an occurrence, or a passer-by has done so with a camera or mobile phone, or the police themselves have carried out covert surveillance by means of hidden cameras so small that they are undetectable. Provided the provenance, continuity and integrity of these films can be assured, far better images and compilations can be produced onscreen than ever before, and everything can be referenced and indexed at the touch of a button.
To date resources of this kind have been reserved for exceptional or high-profile cases such as the two mentioned above, the Stockwell inquest (see Chapter 21) and a couple of criminal trials in which I’ve been involved. It should be rolled out to all Crown Courts.
A further benefit of these innovations is Livenote’s availability to the press and public at large, via the Internet. Public scrutiny is a very important safeguard, and for many people it is impossible to get to a court to watch the proceedings. Even if they could, the gallery in most courts is remarkably small. The real thing is nothing like the dramatised versions portrayed on television and, as with the House of Commons, it’s time the cameras (under controlled conditions) were allowed in to record day-to-day trial developments in a routine and regular way.
Having all these resources makes no sense unless the jurors are encouraged to interact with the matters upon which they have to pass judgment. There should be no inhibitions about asking questions or raising queries, and in this way they will feel, and will be, involved. While it is not possible to have a dialogue with the jurors, whose deliberations are sacrosanct, their participation in court does provide an insight into the extent to which the various aspects of the trial are intelligible. The jury in the Stockwell inquest surpassed any I had known before, both by the number and the quality of their queries.
Addressing a jury is an odd sensation for a barrister. It is one-way traffic. No feedback. No conversation. Imagine sitting down in the same room with someone for months on end, talking to them about all manner of subjects, and getting no verbal response. Generally, for a defence lawyer, it’s not until the end of the trial that you can speak directly to the jury by means of a final speech. (Sometimes an opening speech is allowable, if you are calling defence evidence of fact beyond the defendant’s own.) You have to make assessments continually about how you think the jury are receiving you, and about what kind of people they are. How they look, how they dress, what books or newspapers they carry are less important than the body language that they unconsciously transmit. Even so, you can be terribly wrong. The juror who nods approvingly as you speak may just want you to go quicker; the one who shakes his head in apparent disagreement may have got wax in his ears; the diligent scribe may be assiduously listing all the points you’ve missed . . . and if one is asleep, you know you’ve had it.
There was one occasion when I spotted real consternation on the faces of the jury as I paced up and down in counsels’ row close by. I move about a lot in order to liven up my presentation, and have the habit of removing my shoes (it relieves those varicose veins which trouble me) to reveal red socks, which have occasionally been mentioned in dispatches. My instructing solicitor at the time was an elderly and erudite managing clerk employed by a firm of solicitors in Hackney, who in his spare time was researching and writing a book about the joys of garlic and thought my general health and welfare would benefit, were I to have a daily dose. Noticing my socks, he suggested that I put a garlic tablet in each, so that while I walked up and down the tablet would be crushed and absorbed upwards. Those who consume garlic don’t seem to be aware of the effect on others, and I certainly wasn’t, until a court usher thought I should be alerted to the pungent cloud drifting across the floor.
There are better methods of attracting the attention of jurors, and I’ve always worked on the basis that they appreciate being engaged in a way that allows them to be evidential detectives. Mostly the evidence in cases tends to be circumstantial; rarely is there direct evidence of a criminal act. The prosecution puts forward its contention so that certain inferences can be drawn, and the defence presents an alternative view.
Somewhere along the line there is a detail, an angle, a perspective, an event that unlocks an avenue of thought – the missing pieces in a jigsaw puzzle. It may have been overlooked or underplayed, but it casts everything in a new light. In one of my favourite films, Twelve Angry Men, starring Henry Fonda and E. G. Marshall (who also featured in The Defenders), that is precisely what happens. At the start the majority of the jury think it’s all over bar the shouting and that the defendant is guilty, but slowly doubts creep in when just one juror encourages them to examine the evidence in more detail. I often scour the newspapers when a jury is due to be sent out to consider their verdict, to see if by chance the film is being shown on one of the channels. I am assuming the power of art can help change the course of reality . . .
My client Nabeel Hussein was a teenage student in his first year at Brunel University. Against his better judgement and while caught up in the early flush of student life, he was prevailed upon by others to rent a lock-up in his name, using his bank account, thinking it was for the short-term storage of builders’ materials for his ‘friends’. In fact, unbeknown to him, the lock-up was used by others to store a large quantity of fertiliser capable of being employed to make explosives. This case became known as the Fertiliser Conspiracy. In autumn 2006 Nabeel found himself charged with an extremely serious conspiracy and standing trial at the Old Bailey – and, because of the centrality of the lock-up, he was rated as the third most important defendant out of seven. If convicted, any sentence was likely to involve prison for more than twenty years.
To make my final speech a little more interesting and graphic I used an allegory to introduce the detail or event that lent a fresh perspective, one derived from the artwork of Banksy. There were several examples of his imaginative graffiti near the Old Bailey, which the jury could see for themselves, but I chose to use one of his installations which had just been on show in Los Angeles. Banksy had requisitioned an old warehouse, constructed a typical American living room and placed a real elephant in the middle of it, painted in the same colour and pattern as the wallpaper! Reactions by the American public ranged from a failure to notice the elephant at all, through an unwillingness to acknowledge its presence, to admiration for such a novel accessory. I think Banksy himself was trying to make a point about the war in Iraq.
I adopted the concept of ‘the elephant in the room’ for my speech to the jury because I wanted to emphasise a piece of evidence staring everyone in the face, which clearly indicated Nabeel’s innocence, but which might have been overlooked. Unsurprisingly in a trial lasting over six months, amid the scores of witnesses and the hundreds of documents it’s easy for relevant points to become submerged, and one of these was an event that had occurred shortly before Nabeel was approached about renting the lock-up. One of the co-defendants had suddenly pulled out of renting an entirely different lock-up not far from the one Nabeel was subsequently prevailed upon to hire. I asked the jury to closely re-examine the documents (regarding dates, times, purchase of the fertiliser, and so on), which revealed the enormous pressure on the group now encumbered with a huge quantity of fertiliser, to find an innocent dupe to front the whole operation.
The jury had a massive task because each of the seven defendants had a different case, and they considered their verdict for the longest time I’ve ever encountered, and possibly for the longest period ever recorded – nigh on seven weeks. The judge, Mr Justice Astill, recognised the jurors’ diligence, and before sending them home let them know how much they were appreciated, in a laudatory homily delivered in public.
Nabeel was one of only two defendants acquitted at that trial, the other being defended by Helena Kennedy. I’ve no idea whether this result had anything to do with what either of us said in our final speeches, and from one trial to another you have to make an informed guess. You hone stories, anecdotes, analogies, strategies. You experiment with family and friends until they glaze over. The mirror in the bathroom is a little too close for comfort. If you make someone smile while you’re talking, at least you know they’re listening.
There are a couple of other stories that have helped liven up final speeches.
The first concerns two neighbours. Kitty has a retriever and Rodney a rabbit. Rod is going off for the weekend and asks Kitty to keep an eye on his house while he is away. Next morning, while reading her Saturday newspaper, Kitty casually looks over the fence to see her retriever shaking Rod’s rabbit frenziedly by the neck. Rushing around to his garden in a panic, she rescues the rabbit from the jaws of her dog, but it is too late: the rabbit is well and truly deceased, passed on, gone to meet its maker. Only one thing for it – she takes the rabbit back home, washes it under the shower, dries it off with her hairdryer, fluffs up its fur and finally returns it to its hutch, propping it up against the wire. On Sunday night Kitty hears Rod parking his car, banging doors as he goes through his house into the garden. For a while there is an ominous silence. Kitty anxiously awaits. Soon there is a knock at her door and there stands Rod, distressed, shaking, with both fists clenched. ‘Where have you been this weekend?’
‘Er, nowhere,’ comes the faltering reply.
‘Did you bother to look over the fence?’
‘I did, I did.’
‘Did you see anything unusual or out of the ordinary?’
‘Nothing, nothing at all.’
‘Do you believe in the Second Coming?’
By this time the clenched fists are moving upwards. Kitty thinks the game is up and she is about to join the rabbit. Instead she is clasped in a warm embrace while Rod recounts, in an amazed and excitable tone, that only last week his rabbit had died, he’d buried it in the garden – only to find it moments ago resurrected, spruce and clean in its hutch!
The moral for those cases involving circumstantial evidence? You have to be careful before jumping to conclusions about what you think you see.
The second tale concerns two well-known characters. Sherlock Holmes and his assistant Dr Watson are on a camping trip in the Lake District, where they find it difficult to sleep through a somewhat chilly night. As they lie there, admiring the nocturnal sky, Holmes asks Watson what he makes of it. Watson, believing he should be seeking some eternal hidden truth, replies, ‘From a meteorological point of view, it looks like a fine day ahead; astrologically Saturn is rising; horologically it’s about 4 a.m.; and theologically it is a manifestation of our Lord’s Grand Design.’ Holmes pauses momentarily, as if absorbing such philosophical observations. Then he sits up, stares fixedly into the distance and says, ‘No, my dear Watson, it’s elementary. Someone has nicked our tent.’
The achievement in Nabeel’s case was due not only to the jury, but also to my supportive legal team, Faisal Osman and Imran Khan. It’s not just a matter of preparing all the schedules and statements, but also of providing the client with reassurance and care, hour after hour. In that way we probably spend more time on a case out of court than in it – a factor not always appreciated either by the public or by the politicians.
The acquittal of Nabeel after such a long trial and jury retirement was an occasion of unparalleled relief and joy, as a young, intelligent and highly artistic young man had been spared from an abyss. When you see a client every day for six months, living through some moments of extreme anxiety and others of supreme tedium, you become part of their lives. He was the same age as my youngest son Freddy and typical of everyone’s teenage son. His mother was patient and generous and bore her anguish with great fortitude. She also bore me the occasional sensational hot curry.
Nabeel wrote to me afterwards:
How are you? I have moved into university and settled in just fine. I miss you, Mike, and often think about the trial and our conversations. I cannot believe this time last year I was giving evidence and now I am back at University, a student and free. It is a fantastic feeling. I will stay in touch as always and if there is anything I can ever do, please ask. Luv Nabeel.
What happens to the jurors after the case is over? They are expected to melt away back to their everyday lives, to carry on as if they had merely completed some obligatory errand, but in many instances the experience will have been onerous, soul-searching and traumatic. They may well have listened to heart-rending descriptions by witnesses, seen images of death and destruction, and heard about shameless exploitation and abuse. Crime and disaster cannot be neatly packaged.
Since 1989 in the USA projects have been undertaken to provide jurors, where necessary, with counselling in the form of therapy similar to the treatment given when people are suffering from post-traumatic stress disorder. There is a distinction to be made between those who experience the violence or disaster first-hand and those who do so second-hand, and we tend to concentrate our efforts more on the first category than on the second. It seems to me that this service should be made available by the NHS for jurors, should they want it, as a matter of course.
There was one trial, however, where I did discover afterwards what impact I’d had on the jury. At the time I hadn’t a clue.
Mouloud Sihali was arrested in September 2002, the first of a series of arrests that led to a trial which became known as the Ricin Conspiracy. The arrests were used in the run-up to the war in Iraq to suggest that Britain was under threat from weapons of mass destruction, and represented the most cynical manipulation of the nation’s fears.
On 5 January 2003 police found a few castor-oil beans – potentially the raw material for the poison ricin – in a flat in Wood Green, north London. They also claimed to have found the equipment needed to produce ricin, and recipes for ricin, cyanide and several other poisons.
The significant dates ticked by:
7 January 2003: Tony Blair publicly announced that ‘The arrests which were made show this danger is present and real and with us now. Its potential is huge.’ The case was cited as evidence for further terrorism laws.
8 January 2003: Britain’s largest-circulation newspaper, the Sun, reported the discovery of a ‘Factory of Death’, and other newspapers warned on their front pages that 250,000 of us could have died, that a poison gang was on the loose, and talked about the killer poison with no antidote.8 In fact, ricin is not a weapon of mass destruction: it is a substance that has only ever been used for one-on-one killings.
5 February 2003: US Secretary of State Colin Powell’s speech to the UN endeavoured to build the case for the 2003 invasion of Iraq, as part of the alleged Abu Musab al-Zarqawi global terrorist network: ‘The ricin that is bouncing around Europe now originated in Iraq – not in the part of Iraq that is under Saddam Hussein’s control, but his security forces know all about it.’
20 March 2003: the USA, with the support of the UK, invaded Iraq.
30 March 2003: the head of US forces in Iraq announced: ‘And it’s from this site where people were trained and poisons were developed that migrated into Europe. We think that’s probably where the ricin found in London came from.’
As late as February 2006, Gordon Brown described the so-called Ricin Conspiracy as a significant terrorism plot spanning twenty-six countries.9
It was in this context, representing Sihali at the trial, that on Wednesday 22 September 2004 I was confronted by an anonymous witness from the government research agency at Porton Down, who could only be referred to as ‘H’. As it happened, the contents of the Wood Green flat had no direct connection with Sihali and therefore I was in half a mind whether or not to ask this witness any questions at all, so I had not prepared the cross-examination10 as carefully as I normally would. I began by saying: ‘I am sorry to detain you just a bit longer. I am only going to deal with a few loose ends arising out of what has been asked, if you would bear with me.’
This was a genuine attempt by me to reassure the witness that there wasn’t much more to ask, and thereby gain his confidence, because at that point I had no idea how he might deal with fairly basic questions. Steaming in with strident assertions is usually counterproductive. I endeavour to be disarming – and, dare I say, even charming!
The first question I put was:
Question, MICHAEL MANSFIELD: Amongst the papers that you have in front of you, are there any notes about these events (that is, the events of 6 and 7 January);11 conversations with the police prior to 20 March; the meeting on 20 March, and so on?
Answer, WITNESS ‘H’: No. No, there aren’t. No.
Q: There are no notes?
A: No.
Q: Of any of the matters you’ve been telling this jury about, and his Lordship, made by you at any stage over these important days?
A: That’s correct.
Q: Correct. Why not?
A: I think, at the time, we . . . we probably weren’t in the habit of actually recording telephone calls and making, erm, copious notes.
Q: No, no. Not copious notes. Any notes at all? Were you not in the habit of making any notes about important decisions and stages, if you follow me? Was that not the habit at Porton Down?
A: Certainly not the habit in Porton Down, but I . . . I . . . I can’t recall the notes. I cannot find the notes. Had I taken them, I cannot . . .
Q: We will take this slowly, please. Was it the habit at Porton Down generally, by people who worked at Porton Down, to make notes – some notes – about important decisions?
A: Yes. I believe that’s true.
Q: You believe that to be true.
A: I have made notes. Erm, that’s not unusual. But, unfortunately, erm, I can’t find them.
Q: I will come to that.
A: Sure.
Q: So the answer to the question is generally you, particularly, would make notes about important decisions; yes?
A: Yes.
Q: Next stage: did you make notes with regard to this case about decisions taken either on the 6th or the 7th, or at any later date?
A: I cannot find the notes. I cannot remember.
Q: That is not an answer to the question. I will ask it again. Did you make notes about decisions taken on the 6th and the 7th or thereafter?
A: Yes, I would have made . . . I would have made notes.
Q: There is an obligation, is there not, to maintain records at Porton Down, generally?
A: Correct.
Q: That general policy applies to you, does it not?
A: It should do, yes. Yes.
Q: You are now, and were then, Operations Manager, were you not?
A: Correct, yes.
Q: One of the prime tasks you would have is to ensure the maintenance of a proper record of matters within Porton Down; correct?
A: Correct.
Q: Where would the files be kept in which records were made by you?
A: Probably in the office, but I’m not sure.
Q: You have accepted that you did make notes.
A: I should have done, yes, but . . .
Q: Are you wanting to change that and say that you did not?
A: I want to change to say that I didn’t make notes, yes.
Q: Do you?
A: Yes.
Q: Anything else you want to change?
A: No, no.
Q: Do you find this amusing?
A: No. No.
Q: You didn’t make any notes . . . [continues]
A: I said I’d made notes, but I cannot recall them actually being filed.
Q: Really? I’d like to know what your true position is . . . You see, you mentioned several times they’re not available. How do you know they’re not available, these notes that you would have made, or maybe you did not make . . . [continues]
[Lewis Carroll would have been proud of this!]
Q: We are just wanting the truth here. Are there notes that have disappeared?
A: There are no . . . I don’t believe there are notes. I cannot . . . I cannot recall the . . . the notes.
Q: Nobody has asked you if you have any notes, at any stage before giving evidence? Is that right?
A: I can’t . . . I can’t recall, no.
Q: There is no point in keeping looking through those documents, as you do. There is nothing in there that is going to help you. I just want to ask you if there is any possibility of a cover-up going on here?
A: No. None whatsoever.
Q: You are quite sure?
A: Absolutely.
There should have been notes kept by the Operations Manager revealing what it was that the scientists had found, or actually had not found: ricin. And how much of the true position had been communicated onwards to the police and thence the politicians – or not.
In fact, all the testing on the samples from the Wood Green flat was done by 8 January 2003. The most that could ever have been said was that there was a very weak positive result for manufactured ricin, from a presumptive test carried out on a mortar and pestle. A presumptive test, as already described in relation to explosive traces (see Chapter 17), merely gives rise to the possibility of ricin among an infinite number of other substances, some of which have not even been identified. Dr ‘A’, who was the lead scientist, and a number of others with whom he worked, had arrived at the collective conclusion that the traces could not be attributed to ricin and that the result was to be regarded as negative, not positive. For the purposes of any investigator at the scene, it would still be necessary to take the utmost precaution for obvious health-and-safety reasons in case there were any poisonous traces. None of this had been revealed to the public before the trial, by which time of course British troops were well entrenched in Iraq.
I canvassed some of these points with witness ‘H’:
Q: There is a reason behind all of this, which you will appreciate, and I will put it to you so it is clear: unless you act responsibly and provide accurate information, other people will be misled themselves and mislead other people, an investigation could be skewed. All sorts of things can happen, can they not, if you do not provide the right information?
A: I wasn’t aware of that at the time.
Q: Come along. Operations Manager not aware of that? Unless you provide the right accurate information—[witness ‘H’ interrupts]
A: I stand by my original comments that the overriding, erm, point of view from my point of view was the safety of the teams and people on the ground.
Q: No one takes issue with that for one moment. All you had to do – this is the key question, I suggest – all you had to do on the 7th, 8th or 9th was to communicate to somebody at SO13 [the anti-terrorist squad at New Scotland Yard]: ‘Look here, the scientists think it’s negative, that’s their decision – no ricin detected, however for safety reasons we can’t exclude it altogether.’ You certainly should not go around telling the public that traces of ricin have been found . . . In other words, you tell the police the true position as you saw it. What is wrong with that?
A: Again, it . . . it didn’t happen.
Q: Yes. What is wrong with it? Anything?
A: Well, I think we want to stress the fact that there was a . . . some doubt over the Elisa test [a scientific process relating to the detection of ricin].
Q: Did you tell them that on the 7th?
A: No.
Q: You see, what happened here, and this is what an officer at SO13 is claiming, is that they had no idea there was a problem with a positive result as communicated by you on the 6th until well into March, do you follow?
A: Correct.
Q: They had been misled, had they not?
A: I wouldn’t say misled.
[The cross-examination continued in the same vein for many minutes . . .]
Q: Just concentrate, if you would not mind, on the mortar and pestle and traces of the manufactured ricin. You did not have a positive for ricin, did you?
A: It was reported as a positive.
Q: No. Sorry. ‘Very weak positive for possible ricin amongst a number of substances.’ That is actually the true situation, is it not? Very weak positive?
A: It was a weak positive. You’re right, yes.
Q: ‘For possible ricin, but it could be another substance.’ You have no explanation, it would appear, for why you did not put that in the fax, so the police knew the true position.
A: I have no idea . . . idea why.
Q: You have no idea why you put that. Unless you wanted them to believe you had found manufactured ricin, did you?
A: No. I reported it as I . . . as I truthfully saw the situation.
Q: Did you?
A: Yes.
Q: One of the problems about all of this is that, in the end, there is a risk the public are going to be misled; the government are going to be misled. You do follow that, do you not?
A: Yes. [continues]
Q: Have you always worked in government service?
A: Correct.
Q: Linked to scientists and their investigations?
A: Scientific work, yes.
Q: So it would be fair to say, you would recognise perhaps even more than the scientists themselves, just how important it is, lest anyone is misled, for complete and accurate reporting of what is going on; do you agree?
A: Yes.
Q: But not only do you not report the full picture on the evening of the 6th, you never do until a week before 20 March. Do you agree?
A: Yes. [continues]
Q: You have no explanation for not even doing that, have you?
A: No. [continues]
Q: By the 8th, of course, you will have realised, and I’m not going through all the press cuttings – I think you obviously read the press. Do you?
A: Mm . . . hmm.
Q: You may not believe what they say of course, but in the press, on television, radio and all the rest of it, this story was top of the agenda, was it not?
A: I think it made the headlines, certainly.
Q: It certainly made the headlines. The way the story was often led into was: ‘Traces of ricin found at an address in Wood Green.’ That was the strapline, was it not?
A: Yes.
Q: You must have thought to yourself: ‘Wait a minute, before this goes public, I thought, first it was confidential with the police and second, it’s not right. I’m not going to let this go on.’
A: I certainly was surprised. Erm . . . yes, the first, confidential . . . I was surprised that it actually made the headlines.
Q: Not only that it made the headlines, but that it was wrong?
A: Wrong in regard to . . . ?
Q: They had not found it. It had not been confirmed. Possibly there was ricin, although Dr ‘A’ was saying it was a negative. Even on your version of all this, it just had not been excluded. It was not that they had found traces of manufactured ricin. It was just a possibility that could not be excluded. An entirely different spin was being put forward to the public, do you follow?
A: Yes.
Q: Right. Did you make the slightest effort to ring up SO13 or the press office at New Scotland Yard and say: ‘What on earth is going on here?’
A: No. I didn’t. [continues in the same vein . . .]
It is difficult to convey on paper the atmosphere in court during this cross-examination. I did not know, any more than anyone else, what the witness was going to say about the topics I covered, so you could hear a pin drop as anticipation mounted.
The trial hearings lasted almost a year, and the team of defence barristers was unusual for their range of different styles and talents: Michel Massih, QC, a flamboyant and passionate Palestinian; my junior Matthew Ryder, an assiduous lateral thinker; Marguerite Russell, forthright and assertive; Toby Hedworth, QC, calm, collected and effective; Danny Friedman, dynamo and technical wizard; the perceptive intellect of Ben Emmerson QC; combined with the exceptional diligence of a further three juniors. We all knew each other well and were able to work together easily, and when engaged in such a long trial this can make all the difference.
In April 2005 all the defendants save one were acquitted. Sihali was free, but still awaiting the outcome of an immigration application.
On 13 April 2005 Jon Silverman, legal-affairs analyst for the BBC, wrote:
This case . . . is notable for the way in which criminal investigations are shamelessly exploited for political purposes by governments in the UK and the United States, whether to justify the invasion of Iraq or the introduction of new legislation to restrict civil liberties. A key unexplained issue is why the Porton Down laboratory which analysed the material and equipment seized from a flat in Wood Green said that the residue of ricin had been found when it had not.12
The result of the trial was unacceptable to both prosecutorial and government authorities. So much so that I and many others at the Bar were concerned that the government would use this as an excuse to promote non-jury trials for terrorist-related cases. Sihali was rearrested four months later and returned to Belmarsh Prison in east London, where he had spent nearly two years awaiting his trial in the first place. The notice of reasons served upon him at the time of his re-arrest disclosed the same materials upon which he had been acquitted by the jury.
Uniquely, a number of jurors decided that they would voice their outrage publicly. What had been the point of them sweating over the niceties of evidence if the government was going to circumvent all that and achieve the same object without a trial?
In an interview in the Observer13 one juror said that he was shocked when a number of the men they had freed after a seven-month trial were re-arrested: ‘I was dumbfounded . . . During the trial there were clearly different degrees of evidence against different defendants. But in a couple of cases, the evidence was so flimsy you couldn’t see where the arrest came from in the first place. To re-arrest them seemed totally unreasonable.’ A female juror added that the trial revealed failures by the authorities: ‘[There was] poor intelligence, police having misinformation and not really understanding the background, the government willing something along because of the impending war and it gathered its own momentum . . . Now they are trying to justify why the arrests happened.’
One of the ricin jurors, speaking anonymously, told BBC’s Panorama:14 ‘Before the trial I had a lot of faith in the authorities to be making the right decisions on my behalf . . . Having been through this trial I’m very sceptical now as to the real reasons why this new legislation is being pushed through.’ A second added: ‘I think they are probably a knee-jerk reaction to the recent terrorist incidents in London . . . It’s a classic example of the government’s need to be seeming to do something to quell comment in the nation at large.’ A third said that measures introduced in response to the 7 July bombings were ‘draconian, ill-considered’ and ‘hastily put together’.
The jurors’ public pronouncements were entirely justified and extraordinarily courageous. Of course jurors are not permitted to reveal the discussions they have in the jury room, but these jurors were not transgressing that rule: they were making a timely and powerful point about the rule of law. Why have a system for determining criminal liability which involves time, expense and the deliberation of jurors if, at the end of it all, a government can merely side-step the whole process or ignore the result by locking up the same innocent people without trial?
Physical torture is bad, but I think the worst kind of torture is psychological: where you imprison somebody and throw away the key, which is basically what the government was doing with foreign detainees in Belmarsh. No charge; no trial; no information about the real basis for the detention; representation by special counsel in secret hearings without the detainee. But it wasn’t just Belmarsh – the government had turned its back on the rule of international law as well. (For example, the treatment of British resident Binyam Mohamed, a Guantanamo detainee, finally released in February 2009.)
What came as a complete surprise to me was that the ricin jurors did not stop at their expression of disgust, but wanted to help Sihali get out of Belmarsh and resolve his immigration problem. I managed to secure Sihali’s release, but it was under the very strict and onerous conditions of a Control Order regime. This is equivalent to twenty-four-hour house arrest, where you can barely breathe without letting the authorities know what you are doing. Eventually there was a Special Immigration Appeals Commission hearing to decide whether the basis for his re-arrest – suspected terrorism – was justified, and fortunately they found that it was not. I was even more surprised when the jurors turned up to this hearing. This was unprecedented and a remarkable display of support by fellow citizens. It was then that I discovered that my Porton Down cross-examination had for them been a turning point during the trial, which changed their attitudes to government policy and pronouncements.
As for Sihali, finally cleared of the terrorism tag, in early 2009 he was still waiting to hear from the Home Office about his application for asylum. Still living in fear, he is convinced that deportation back to Algeria would mean inevitable torture.
The steadfastness and fortitude of these jurors form part of a long tradition of English juries who have held out against the state, and I believe this history should form part of the school curriculum.
The plight of two Quakers, William Penn and his son William Mead, is a case in point.15 In 1670 they were charged with sedition and unlawful assembly for preaching in contravention of iniquitous laws aimed at suppressing Nonconformism. Penn encouraged the jury at the Old Bailey: ‘You are Englishmen. Mind your privilege. Give not away your right!’ Edward Bushell, the foreman, replied: ‘Nor will we ever do it!’, and the jury refused to convict the two despite the exhortations and threats of the judge. The threats were very real: the jurors were locked up for two nights, starved and, worst of all, denied tobacco, but they still held out, were fined by the judge for failing to convict and held in Newgate Prison until they paid up. Led by Bushell, four refused and remained in prison for seven months. There was an appeal16 to the Lord Chief Justice Vaughan, who decided they should be released, proclaiming the right of juries to give their verdict by their conscience, irrespective of the judge’s directions, and there is a plaque commemorating this jury’s resilience on the ground floor of the Old Bailey. In appropriate trials I encouraged jurors I was addressing to go and look at it, and take strength from it. William Penn was later to become the founder of the state of Pennsylvania in the USA.
Since then there have been many other notable conscientious juries which have rejected draconian prosecutions, especially in some capital-punishment cases.
In a series of cases in the 1970s in which I was involved – brought under the Incitement to Disaffection Act, when peace activists were trying to persuade soldiers not to fight in Northern Ireland – juries refused to convict, while another high-profile case was that of Clive Ponting in 1985: the civil servant was charged with breaking the 1911 Official Secrets Act after leaking two documents about the sinking of the Argentine ship, the General Belgrano, during the Falklands war. Ministers had misled the public into thinking the ship was threatening British lives, when in fact it was sailing away from the battle zone when it was attacked. Although the judge directed the jurors to convict, they ignored him and Ponting was acquitted.
In 1989 Michael Randle and Pat Pottle published a book17 in which they confessed to their part in helping the double agent George Blake escape in 1966 from Wormwood Scrubs, where he was serving a forty-two-year sentence for espionage. Yet again, despite the judge’s efforts, the jury disregarded his direction and acquitted.
There are a number of situations where the conscientious discretion and judgment of the jury will be essential to defend not only the interests of justice, but also the very vitality of our democracy: where the law itself is pernicious or oppressive; where its application by means of the process of prosecution and investigation is unfair and inhuman; where the role of the jury is subverted by overweening judicial authority.
E. P. Thompson, the celebrated historian, summed up the underlying principle of the jury system thus:
The English common law rests upon a bargain between the law and the people. The jury box is where the people come into the court: the judge watches them and the jury watches back. A jury is the place where the bargain is struck. The jury attend in judgment, not only upon the accused but also upon the justice and humanity of the law.18
* An adaptation of Alice in Wonderland, with apologies to Lewis Carroll.