Regina v Abu Hamza: CACD 28 Nov 2006

The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out abroad.
Held: The appeal failed. Murder is singled out as an offence even when committed outside the jurisdiction is no doubt the particularly serious nature. Everything points to giving the words of section 4 of the 1861 Act the broad meaning that they naturally bear having regard to the unique extra-territorial jurisdiction long established in relation to that crime. The offence was correctly charged. The acts of the authorities fell a long way short of amounting an abuse of process.
As to the effects of the publicity, reliance should be placed on the jury supported by a direction from the judge: ‘The risk that members of a jury may be affected by prejudice is one that cannot wholly be eliminated. Any member may bring personal prejudices to the jury room and equally there will be a risk that a jury may disregard the directions of the judge when they consider that they are contrary to what justice requires. Our legal principles are designed to reduce such risks to the minimum, but they cannot obviate them altogether if those reasonably suspected of criminal conduct are to be brought to trial. The requirement that a viable alternative verdict be left to the jury is beneficial in reducing the risk that the jury may not decide the case in accordance with the directions of the judge. Prejudicial publicity renders more difficult the task of the court, that is of the judge and jury together, in trying the case fairly. Our laws of contempt of court are designed to prevent the media from interfering with the due process of justice by making it more difficult to conduct a fair trial. The fact, however, that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the judge concludes that, with his assistance, it will be possible to have a fair trial. In considering this question it is right for the judge to have regard to his own experience and that of his fellow judges as to the manner in which juries normally perform their duties. ‘
Lord Phillips of Worth Matravers, Lord Chief Justice said: ‘circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has been given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances other than to say that they must be such as to render the proposed prosecution an affront to justice . . Only in rare circumstances will it be offensive to justice to give effect to [the public interest that those who are reasonably suspected of criminal conduct should be brought to trial]. Such circumstances can arise if the police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance on that undertaking, acts to his detriment.’

Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Penry-Davey and Mr Justice Pitchford
[2006] EWCA Crim 2918, Times 30-Nov-2006, [2007] 2 WLR 226, [2007] 3 All ER 451, [2007] 1 Cr App R 27
Terrorism Act 2000 58, Public Order Act 1986 818(1), Offences Against the Person Act 1861 4, Criminal Law Act 1977 1(1)
England and Wales
CitedBoard of Trade v Owen HL 1957
The defendants appealed their convictions under common law for a conspiracy to defraud. The conspiracy was within the jurisdiction but the intended fraudulent acts would happen in Germany. The Court of Appeal quashed the convictions for conspiracy. . .
CitedRegina v Serva and nine others 26-Jul-1845
The court considered the meaning of the phrase ”against the peace of the King’
Held: The phrase applies to the offender: it relates to his capacity to commit the crime. . .
CitedRegina v Page CMAC 1954
The defendant, a corporal in the Royal Corps of Signals had been tried and convicted by a Court Martial in Egypt for the murder of an Egyptian national in an Egyptian village. The issue in the appeal was whether a Court Martial had jurisdiction . .
CitedRegina v Bernard 1858
The defendant alien faced charges arising from alleged conduct within the jurisdiction, with being an accessory before the fact to the murder in Paris of people killed by a grenade thrown by an alien. Questions of law reserved included the question . .
CitedAntonelli v Barberi 1907
The defendant was charged with encouraging persons unknown to murder a foreign soverign. . .
CitedTreacy v Director of Public Prosecutions HL 1970
Blackmail was alleged under section 21 of the 1968 Act, the letter making the unwarranted demand with menaces having been posted from England to an intended victim in Germany.
Held: The appeal was dismissed. To allow an English court to have . .
CitedThe Queen v Boutzeff 1898
. .
CitedRegina v Tchorzoewski 1858
The defendant was accused of inciting the murder of the Emperor of France. The Attorney -General asked the court to accept undertakings from the defendant on entry of a directed verdict of not guilty.
Held: The undertakings were accepted: Lord . .
CitedRegina v Most 1881
(Court of Crown Cases Reserved) A count on the indictment alleged that the defendant: ‘knowingly and wickedly did encourage certain persons, whose names to the jurors were unknown, to murder certain other persons, to wit sovereigns and rulers of . .
CitedRegina v Croydon Justices Ex Parte Dean QBD 9-Mar-1993
The applicant a 17 year old assisted the police in a murder investigation on the understanding, induced by the police, that he would not himself be prosecuted. Some weeks later, at the instance of the CPS, the applicant was charged with a lesser . .
CitedRegina v Townsend and Others CACD 8-May-1997
Where a defendant has been induced to believe that he will not be prosecuted, this is capable of founding a stay for abuse; where he then co-operates with the prosecution in a manner which results in manifest prejudice to him, it will become . .
CitedRegina v Bloomfield CACD 25-Jun-1996
It was an abuse of process to proceed with a prosecution in the face of an unequivocal statement by counsel for the Crown to the Court that the prosecution would tender no evidence. There was no change of circumstances which might have justified . .
CitedRegina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
CitedRegina v Kray CACD 1969
The court dealt with a case where prejudice was claimed on behalf of the defendant because of publicity before the trial. Lawton J said: ‘The drama of a trial almost always has the effect of excluding from recollection that which went before.’
CitedRegina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
CitedIn the matter of B CACD 2006
The court recommended reliance on the good sense of juries: ‘There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, . .
CitedAttorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
CitedRegina v Coughlan and Young CACD 1976
Coughlan and Young were convicted at Birmingham Crown Court of conspiracy to cause explosions in the United Kingdom, the prosecution having limited the allegation to explosions in Birmingham and its neighbourhood. Charges had been brought in respect . .
CitedKakis v Government of the Republic of Cyprus HL 1978
Kakis’ extradition was sought by Cyprus in relation to an EOKA killing in April 1973. Although a warrant for Kakis’ arrest had been issued that very night, he had escaped into the mountains and remained hidden for 15 months. Subsequently, he settled . .
CitedRegina v Maxwell CACD 1988
The defendant admitted paying two others to burgle his partner’s home, but said he had not anticipated violence, and appealed against his conviction for robbery, saying the judge should have left the alternative verdict to the jury. The jury, during . .
CitedMontgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
CitedRegina v West (Rosemary) CACD 3-Apr-1996
Payments to witnesses in criminal trials by media need investigation and control. Nevertheless, the fact that a number of witnesses had sold their stories to the media before the trial, which was disclosed to the defence before or during the trial, . .
CitedRegina v Taylor and Another CACD 15-Jun-1993
In June 1991 Mrs Shaughnessy was stabbed to death at home. In July 1992 the Taylor sisters were convicted of that murder. An investigating police officer had suppressed an inconsistent statement made by a highly material witness, and there was also . .
CitedRegina v Maxwell HL 1990
The defendant had hired two men to enter his former partner’s house to commit robbery. It was his defence that he did not contemplate violence, and that he was only guilty of the offence of burglary. The prosecution would not add a count of burglary . .
CitedRegina v Central Criminal Court ex parte The Telegraph Plc CACD 1993
The court considered the effect of a jury trial in balancing pre-trial prejudicial publicity. Lord Taylor CJ said: ‘In determining whether publication of matter would cause a substantial risk of prejudice to a future trial, a court should credit the . .
CitedRegina v McCann and Others CACD 1991
The defendants were alleged to be members of the IRA who had been found near to the home of Secretary of State for Northern Ireland. They were charged with conspiracy to murder. They did not give evidence. During closing speeches in a terrorist . .

Cited by:
CitedHM Attorney General v British Broadcasting Corporation CA 12-Mar-2007
The police were conducting a major investigation into suspected awards of state honours in return for cash and associated events. The AG had obtained an order restraining the defendant and other media from reporting allegations that one person was . .
CitedGuest v Director of Public Prosecutions Admn 5-Mar-2009
The claimant, the victim of an alleged assault, challenged the failure of the respondent to quash a conditional caution given to the assailant. The respondent accepted that a decision to prosecute would have been appropriate.
Held: The offence . .
CitedAbdul and Others v Director of Public Prosecutions Admn 16-Feb-2011
The defendants appealed against convictions for using threatening, abusive or insulting words or behaviour or disorderly behaviour . . within the hearing or sight of a person likely to be caused harassment, alarm or distress. He had attended a . .
CitedSmith, Regina (on The Application of) v Crown Prosecution Service Admn 24-Nov-2010
The claimant sought judicial review of the defendant’s refusal to discontinue the prosecution of the claimant. The judge had suggested that the defendant could submit to a restraining order without a finding of guilt. The CPS had concluded that no . .
CitedHM Attorney General v MGN Ltd and Another Admn 29-Jul-2011
The police arrested a man on suspicion of the murder of a young woman. He was later released and exonerated, and a second man arrested and later convicted. Whilst the first was in custody the two defendant newspapers, the Daily Mirror and the Sun . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice

Leading Case

Updated: 02 November 2021; Ref: scu.246768