Court of Appeal Criminal Division

Published May 16, 2007

Regina v IK Regina v AB Regina v KA

Before Sir Igor Judge, President, Lady Justice Hallett and Mr Justice Hedley Judgment April 27, 2007

Double jeopardy was not available as a plea in bar unless both sets of proceedings were criminal and the Special Immigration Appeals Commission was not a criminal court.

The Court of Appeal, Criminal Division, so held in a reserved judgment when allowing appeals by the Crown against orders made by Mr Justice Mackay in Woolwich Crown Court on February 21, 2007 staying criminal proceedings against the defendants, IK, AB and KA, arising from an indictment charging conspiracy to provide property for the purposes of terrorism and offences under the Terrorism Act 2000.

Mr Ian Burnett, QC, Mr Nicholas Hilliard and Mr Sean Larkin for the prosecution; Mr Edward Fitzgerald, QC and Mr Daniel Friedman for IK; Mr Henry Blaxland and Mr Edward Grieves for AB; Mr Terry Munyard and Miss Rana Refahi for KA.

THE PRESIDENT said the defendants were alleged to be members of the Libyan Islamic Fighting Group.

IK entered the United Kingdom in 1994 and was detained in November 2002 following a certificate issued by the Secretary of State for the Home Department under section 21 of the AntiTerrorism, Crime and Security Act 2001.

That was cancelled when he successfully appealed to the Special Immigration Appeals Commission in March 2004 and he was released when the Court of Appeal refused an application by the Home Secretary for leave to appeal.

AB and KA entered the United Kingdom in 1994 and, in May 2004, were imprisoned by the Birmingham Crown Court both having pleaded guilty to having false documents and materials to make them. They were released in July 2005.

In October 2005 the three defendants were detained for proposed deportation and also charged in December with the current criminal offences.

When Mr Justice Mackay stayed proceedings against the defendants as an abuse of process, he granted the Crown leave to appeal, regarding IK, as to whether it was appropriate to extend principles of double jeopardy to proceedings in the commission and subsequent criminal proceedings; and, regarding AB and KA, what material was to be considered in deciding whether criminal charges were founded on the same facts.

His Lordship said a helpful analysis of double jeopardy principles was seen in Connelly v DPP ([1964] AC 1254).

He concluded that, while it was submitted that IK was deprived of his liberty as a consequence of the certification proceedings, he was not being prosecuted; he was never at risk of conviction nor was he being punished for any offence.

If he were to be convicted of the current terrorist charges, there would be no inconsistency between the decision of the commission and the verdict of the jury which would be reached on different evidence.

The Special Immigration Appeals Commission hearings were not, and did not determine criminal proceedings; the commission was not a competent court for the purpose of such proceedings.

The essential public interest features underpinning the decision in R v L ( The Times August 24, 2006; [2006] 1 WLR 3092) applied, and, as matter of principle, double jeopardy was not available as a plea in bar unless both sets of proceedings under consideration were criminal proceedings.

Accordingly, the order to stay the proceedings against IK would be set aside. The orders against AB and KA would also be set aside as the evidence relating to the alleged offences was not the same as the evidence supporting the terrorist offences; the facts were different.

The defendants were not directly or indirectly in jeopardy for these offences and were not facing sequential trials for offences on an ascending order of gravity of the same facts. Solicitors:

Crown Prosecution Service, Headquarters; Birnberg Peirce; Birnberg Peirce; Birnberg Peirce.

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