No: 96/2762/X2

IN THE COURT OF APPEAL
CRIMINAL DIVISION
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Thursday 7th November 1996
 
                    B E F O R E :
 
                  LORD JUSTICE AULD

                 MR JUSTICE JOHNSON
 
                         and

                  MR JUSTICE HIDDEN

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                    R E G I N A

                       ‑ v ‑

 
                   FAISAL MOSTAFA
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
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         (Official Shorthand Writers to the Court)
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MR S LESLIE QC appeared on behalf of the Applicant
 
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                      JUDGMENT
             (As approved by the Court)
 
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                  Crown Copyright 
                          Thursday 7th November 1996
LORD JUSTICE AULD:  On 27th March 1996, before Sachs J in the Crown Court at Manchester, the applicant, Faisal Mostafa, was convicted by a majority of ten to two of possessing a firearm and ammunition with intent to endanger life (count 3 on the indictment).  He and two others were acquitted on a charge of conspiracy to cause an explosion of a nature likely to endanger life or cause serious injury to property (count 1 on the indictment).  On the firearm and ammunition charge, Sachs J sentenced him to four years' imprisonment. He renews his application for leave to appeal against conviction after refusal by the single judge, his proposed ground of appeal being that the verdicts of the jury are inconsistent.
      The prosecution case, in brief, was that the applicant and two other men were terrorists, conspiring to cause explosions likely to endanger life or cause serious injury to property in the United Kingdom.
      On 3rd February 1995, after a lengthy surveillance of the three men, police officers found at the applicant's home a large quantity of parts of firearms and air weapons, bullets, shotgun cartridges, bullet heads, rifle primers, timers and explosives of various sorts.  The discovery of those materials formed the main  basis of the prosecution's case on the conspiracy count, of which the applicant and his two co‑accused were acquitted.
      In addition, the police officers found hidden in the applicant's mattress a Sauer self‑loading .23 pistol and ammunition, the subject of count 3, of which he was convicted.  The pistol was in good working condition and the ammunition found was suitable for use in it.  They were, apart from some ammunition found in the airing cupboard, the only items which can be said to have been hidden in the applicant's house and they were the only items of which his simple possession was illegal.
      The applicant, who is aged 32, was formerly a PhD student at Manchester Polytechnic, researching corrosion inside tin cans.  He denied that he was a terrorist or that he had been planning terrorism.  He admitted possession of all the items, including the Sauer pistol and ammunition found with it, but took issue with the prosecution's case on intent in each case.  His case was that some of the explosive substances and other components found at his home had been for use in his research.  However, he acknowledged that some of the materials were also the product of his long‑time interest or hobby of experimenting with small explosions and fireworks.  As to the various weapons and parts of  weapons found, he said that they too had been a long‑term interest of his.  He said that he had fired weapons that he had assembled, aiming at targets at home, and that he was a member of a rifle club.  As to the large quantities of ammunition, he said that most of it was destined for Bangladesh.  His explanation about the Sauer pistol and ammunition found in the mattress was that he had bought them from a former school friend for £350.  He said that he had known his possession of them was unlawful and that he regretted having purchased them.
      The applicant called a number of witnesses who testified as to his good character and well‑known interest in chemicals and explosives and other hobbies.
      Mr Stephen Leslie QC, on behalf of the applicant, has submitted today that the verdicts on the two charges are inconsistent because they both stem from a single allegation that the applicant was a terrorist. Mr Leslie said that that was how, in substance, the judge directed the jury to approach their task.  He said that the reality of the jury's conclusion can only be explained by saying they thought he was a little bit guilty but not wholly guilty of the matters which the prosecution put against him.  He suggested that no reasonable jury, properly applying their minds to the  facts of the case, could have reached the decision they did ‑ the well‑known test derived from this Court's decision in Durrant 56 Cr App R 708.
      How, submitted Mr Leslie, could the jury reasonably convict him of having the firearm and ammunition with intent to endanger life when the only possible basis for it could have been that he had terrorism in mind, an intent of which they absolved him by acquitting him of conspiracy to endanger life on count 1?  It was, submitted Mr Leslie, the same intent, an intent to endanger life, which, in the context of this case, must mean terrorism.
      As to the judge's treatment of the matter, Mr Leslie referred to a number of passages in the summing‑up, the first at pages 3A‑B of the transcript. In that passage the judge said this:
"Each defendant is entitled to be considered separately on count 1 and Mr Mostafa is entitled to be considered separately on count 3.  I say no more at this stage, but that if you find Mr Mostafa not guilty on count 1 I am sure you will be deeply reluctant to find him guilty on count 3, but that, as I say, is a matter for you." 
      Mr Leslie commented that there the judge was giving the jury a strong hint that the two charges should be considered together.  That is true, but, as the words we have read make plain, the judge clearly left the decision on that to the jury. 
      The next passage in the summing‑up to which Mr Leslie referred us was at pages 14G‑15C of the transcript.  There the judge said, after instructing the jury to keep their eyes on the ball:
"You probably do not know many terrorists.  I do not know whether terrorists all come looking alike, I have no idea, but terrorists it is suggested these three are. You will look at them and the impression they have created on you and their behaviour and the facts in the evidence and decide whether you think that is the case or whether that is really quite unrealistic.  Suspicion, curious ‑ things that does not amount to guilt.  You must be sure that they committed the offence, or in Mr Mostafa's case, offences, with which they are charged.  That is what it is all about, nothing else. Perhaps Mr Horrocks, who lived next door to Mr Mostafa  ..., who spoke very well of him, as did many other people ‑ perhaps we would not want to live next to Mr Mostafa with his house full of chemicals and weapons and bullets ‑ that is not the question at all.  He made no attempt to hide them, the Sauer apart, none at all." 
      Mr Leslie suggested the judge was there putting to the jury that the case was all about terrorism.
      Finally, he referred to a passage in the summing‑up at page 80A‑E.  There he said:
"I say what I said to you at the beginning.  Looking at these defendants separately, have the Crown made you sure ‑ sure ‑ that they were conspiring, plotting, agreeing if you like, with each other or other persons unknown to cause by an explosive substance an explosion of a nature likely to endanger life or cause serious injury to property in the United Kingdom?  You have to be sure of that before you can convict any of them on count 1.  I have told you that Mr Mostafa also faces count 3; I have also indicated to you that that largely depends upon your evaluation of Mr Mostafa in relation to count 1.  You have to be sure they were terrorists plotting to do those things.  If you think their explanations of what happened of what you have seen are true or might be true then they are entitled to be acquitted." 
      Mr Leslie relies on that passage, as he had on the earlier ones, to indicate that the judge was there inviting the jury to consider the two charges together, although, as before, in his use of the adverb "largely" making plain that the final decision was for them.
      Whilst it is true that the judge in his summing‑up, in the passages to which we have referred, suggested to the jury that they might well consider that the two charges stood or fell together, he also made plain that they were separate charges with distinguishing characteristics in law and on the facts as alleged.  He also made plain, as we have said now more than once, that the final decision was for them.
      After his initial direction at page 3 of the transcript to consider the charges separately, albeit with an indication that they might be inclined to take the same view on both, he went on to direct the jury separately on the ingredients of each offence.  As to the possession of the Sauer pistol and ammunition with intent to endanger life, he directed them in this way at page 6B‑F of the transcript:
"So far as Mr Mostafa is concerned he also faces on his own ‑ and this is in relation purely and simply to that Sauer pistol ‑ count 3 which is an offence of possessing a firearm with intent to endanger life.  It says that on 3rd February he had in his possession or under his control that pistol.  There is no dispute about that, no dispute at all.  The area of dispute arises in the following words 'that he had it in his possession or  control with intent by means thereof to endanger life or to enable another person by means thereof to endanger life'.  The Crown have to prove that intention.  As I say, there is no dispute about possession.  The possession of itself is not the offence.  The only way you could find Mr Mostafa guilty is if you found that he had that intention." 
      The judge later gave the jury a discrete account of the applicant's evidence about the Sauer pistol, posing for them a question as to his intent in acquiring it, a question not tied to the prosecution allegation of terrorism.  This is how he put it at pages 33G‑34C of the transcript of his summing‑up:
"Mr Mostafa said this about the Sauer pistol.  He was asked why he purchased it illegally.  Mr Mostafa said he had got it from Mr Pitt, who in fact was known to Mr Rahman [Mr Rahman was one of the co‑accused], Mr Rahman having known him at Burnage High School, that he was interested in the weapon and paid £350 for it and he got it with those bullets to which I have referred you.  You will ask yourself this:  'Why on earth did he buy that?  Did he just buy it out of his interest in guns, his obsession with them?  He knew it was unlawful, could he just simply not resist it?'  If it was just part of his hobby then it assumes no importance, does it, at all?  If it was something darker, you may think, in a crowded house in order to hide it what he did was less than efficacious.  There you are ‑ he had it.  He says he regrets it now and there it was, the only item which was hidden when the police arrived at his home. Of course, it was the only item that was illegally held by him, was it not?  That is why it was hidden." 
In fact, as has been pointed out in the course of this application, there was evidence that some other ammunition was hidden in the airing cupboard at the house.  The judge later referred to that towards the end of a short passage in his summing‑up. 
      There were, as the judge pointed out, distinguishing features about the Sauer pistol and ammunition.  The applicant's possession of them per se was illegal and he knew that.  Secondly, apart from the ammunition in the airing cupboard, of all the considerable quantity of weaponry, ammunition and explosive materials in his possession, only the Sauer pistol and the ammunition usable in it were hidden.  The judge, rightly, told the jury that they should consider the two charges separately.  He also told them rightly that they could draw inferences from the evidence.
      We agree with the view of the single judge that in the circumstances it was open to the jury to infer an intent to endanger life on count 3 notwithstanding their rejection of the more general allegation in count 1, not just in substance of terrorism but of conspiracy with others to endanger life in the cause of terrorism.  The general nature of some of the judge's remarks to the jury on which Mr Leslie has relied did not remove from them the force of his original direction to consider the two matters separately and to make up their own minds on each.  As my Lord, Johnson J, observed in the course of argument, the jury were entitled to form their own view on the matter.
      In our judgment, applying the Durrant test, these  verdicts were not inconsistent.  Accordingly, we refuse the application.
 
MR LESLIE:  My Lord, you may think this is a cheeky application, but in the light of the fact that there has been so much argument ‑‑ you know my position ‑‑ if I can put it this way, in relation to this matter, I wonder whether your Lordships might consider in the circumstances granting legal aid.  I know it is not normal; I accept that.  But in the circumstances, and having heard your judgment, I would respectfully say it was arguable.
 
LORD JUSTICE AULD:  Mr Leslie, we are not prepared to grant legal aid.  In saying that, we thank you for appearing as you have done, which is in the highest traditions of the Bar.
 
MR LESLIE:  I am grateful to you.