Regina v Ali

Factual and Procedural Background

The Applicant, aged 29 at the time of trial, was convicted on 26 June 2018 at the Central Criminal Court before the Recorder of London of two counts of possession of an explosive substance with intent under the Explosive Substances Act 1883 and one count of preparation for terrorist acts under the Terrorism Act 2006. On 20 July 2018, the Applicant was sentenced to life imprisonment with minimum terms of 40 years (less time on remand) for the first two counts and 25 years for the third count, all concurrent.

The Applicant renewed an application for leave to appeal both conviction and sentence after refusal by the Single Judge. Leave to appeal conviction was granted. The appeal raised concerns about two ex parte hearings held during trial for case management purposes, which the Applicant contended lacked proper legal basis and rendered the convictions unsafe. The prosecution defended the hearings as necessary to avoid inadvertent mismanagement of the trial, relying on the CPS Disclosure Manual.

The charges related to possession and manufacture of explosive devices intended for use abroad and preparation for a terrorist attack in Central London. The prosecution's case included fingerprint evidence linking the Applicant to explosive devices, evidence of intent and preparation for terrorist acts, and surveillance and material found on the Applicant's devices. The defence argued duress for the explosive substance charges and denied intent to commit terrorist acts for the third count. The jury convicted the Applicant on all counts.

During trial, the prosecution held two ex parte hearings with the Judge, excluding the defence, for the purpose of notifying the Judge of sensitive, non-disclosable information to prevent inadvertent mismanagement of the trial. The defence challenged the legality of these hearings on appeal.

Legal Issues Presented

1. Whether there was a proper legal basis for the prosecution to hold ex parte hearings with the Judge for case management purposes outside the scope of Public Interest Immunity (PII) applications.
2. Whether the ex parte hearings amounted to a material irregularity rendering the Applicant's convictions unsafe.
3. Whether the sentencing was fair and properly categorized under the relevant Sentencing Council guidelines.

Arguments of the Parties

Appellant's Arguments

• No lawful authority existed for ex parte hearings outside PII matters, violating the principle of open justice under common law and Article 6(1) of the European Convention on Human Rights (ECHR).
• The CPS Disclosure Manual could not confer legal authority for such hearings.
• The Court's inherent jurisdiction permits exceptional departures from open justice only inter partes, not ex parte hearings excluding the defendant.
• Neither the Criminal Procedure Rules nor Article 6(1) ECHR support such ex parte hearings.
• Statutory authority or high judicial authority decision was required to justify this practice, which had not been established.
• The ex parte hearings constituted a material irregularity making the convictions unsafe.
• Regarding sentencing, the Appellant argued miscategorization of offences and potential unfair influence from ex parte hearings.

Respondent's Arguments

• Ex parte "notification" hearings serve the overriding objective of criminal procedure rules (Crim PR) to deal with cases justly and protect the defendant's rights under Article 6(1) ECHR by preventing inadvertent mismanagement of the trial.
• The hearings were consistent with guidance in the CPS Disclosure Manual and were necessary to prevent unfairness to the defendant.
• The practice has been used in multiple cases and is supported by experienced judges and prosecutors.
• The CPS Manual provisions derive from principles established after the House of Lords decision in R v H and have been incorporated into training notes and judicial practice.
• Notification hearings ensure the integrity of proceedings where sensitive material not meeting disclosure tests must be flagged to the Judge to avoid unfairness or damage to public interest.
• The sentencing was justified under the relevant Sentencing Council guidelines, with appropriate categorization and consideration of dangerousness and mitigation.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began with the foundational principle of public and open justice, emphasizing the defendant's right to be present and participate fully in criminal proceedings. Citing Attorney-General v Leveller Magazine, the Court acknowledged that departures from open justice are exceptional and justified only when necessary to serve the ends of justice.

Examining the ex parte hearings in question, the Court noted that the practice of holding such hearings outside the context of Public Interest Immunity (PII) applications was novel and not supported by clear legal authority. The CPS Disclosure Manual, while providing guidance on such hearings, lacked legal force and could not alone justify the practice.

The Court analyzed R v H and found it primarily concerned PII-related ex parte hearings and did not extend to the notification hearings held here. It recognized the dangers inherent in private communication of unused material damaging to the defendant but accepted that, in rare and exceptional circumstances, ex parte notification hearings might be necessary to avoid inadvertent trial mismanagement.

The Court identified the inherent jurisdiction of the Court to control its proceedings as the proper source of authority for such hearings, subject to strict conditions: the need must be exceptional; no practicable inter partes or in camera alternative should exist; the hearing must be necessary to avoid unfairness; and the material and discussion must be strictly limited to what is necessary.

Upon review of the transcripts and ruling, the Court was satisfied that the notification hearings in this case complied with these conditions, did not disclose any material irregularity, and thus did not render the convictions unsafe.

Regarding sentencing, the Court agreed with the Single Judge that the categorization of offences under the Sentencing Council guidelines was appropriate and that the ex parte hearings did not influence sentencing unfairly. The Court endorsed the Recorder of London's findings on the gravity of the offences, the dangerousness of the Applicant, and the balance struck in the timing of arrest and evidence gathering.

The Court expressed concern that the practice of ex parte notification hearings had thus far been based solely on guidance without legal authority and recommended that the Criminal Procedure Rules Committee consider formalizing and regulating such procedures to provide clarity and safeguards.

Holding and Implications

The Court GRANTED LEAVE TO APPEAL CONVICTION but ultimately DISMISSED THE APPEAL AGAINST CONVICTION, holding that the ex parte notification hearings were permissible in principle under the Court's inherent jurisdiction and were properly conducted in this case without material irregularity.

The renewed application for leave to appeal sentence was REFUSED, with the Court affirming the appropriateness of the sentencing decisions and rejecting any suggestion that the ex parte hearings influenced the sentence unfairly.

The decision does not establish new precedent extending the scope of ex parte hearings beyond the parameters outlined, but it recognizes the possibility of such hearings under strict conditions. The Court called for formal procedural rules to govern this practice, highlighting the need for legal authority and clear safeguards to protect the principle of open justice and defendant rights.