We register our unqualified respect for the system we have of trial by jury in this country. But jurors can on occasion get things wrong. They have done so in significant cases in the past and nowhere more shockingly than when the allegation has been of involvement by defendants in terrorist activity. We the lawyers for Naweed Ali and Khobaib Hussain are profoundly concerned that the jury in this case has got it wrong.
Amongst the many disturbing issues highlighted by the case, independently of any verdict, we place on record our concern in respect of three only; (A) the implications of undercover police and Security Service witnesses taking on roles of traditional policing; (B) the extraordinary curiosities of evidence surrounding the finding of the bag and its contents; and (C) the implications of acknowledged false evidence having been given by at least one key witness.
There is a clear distortion of the normal criminal justice process as a result of the novel introduction of undercover police and British Security Service officers as the givers of evidence normally conducted by “ordinary” counter terrorism detectives.
The first two categories of witness (but not the third) are permitted complete anonymity; their names and career histories are not revealed; they give evidence from behind screens and claim, as the reason for refusal to answer a multiplicity of probing questions by the defence, that to answer would constitute a risk to national security. Their normal role if they do give evidence, has been as the recorders of conversations with or the behavior of accused persons. In this case their role has been very different – as the “search” officers and the finders of the key evidence in the case.
The way that the category of anonymized witness is protected within the trial process means in practice that if an officer has blazed a lengthy career trail (or has even once previously been involved) in a similar pattern of behavior as was being confronted in the instant case, that pattern of prior behavior cannot ever be adequately investigated and certainly not by the defence or for that matter, by investigative journalists. The answer of the counter terrorism officer in charge of the “normal” investigations in this case as to why he did not investigate when the defendants first arrested stated that they knew nothing of the bag in the car, and thereafter that it might have been instead put there by the undercover officer himself was that he would not have done so “because they were police and had taken an oath”
When the second undercover officer Andy, received a text message on the eve of trial
“Lads a bizarre question I know but can you tell me if you have ever been involved in a case where it’s been alleged you planted evidence ?? any responses to me will call you if you need to clarify. It’s just a question our QC wants to head off at the pass …”
“Numerous … particularly in drugs investigations … sorry I cant be specific and none to my knowledge in the UC capacity”
His answer proved the end of the trail rather than beginning, since no one could discover who Andy had been in any previous police incarnation. Nor, it emerged, was there any record of undercover officer Vincent’s fingerprints held on the police fingerprint system as is standard police procedure – unspecified fingerprints found on the bag in the car which were not those of the defendants could consequently not be compared with those of the officer suggested by the defence to have been the only person able to have put the bag and its contents where it was claimed to have been found.
Normal and relevant investigation of witnesses whose integrity is key to the prosecution’s case in these circumstances is stopped in its tracks.
Recent history is quickly forgotten, yet the present case carries disturbing echoes for us of the case of the six innocent Irishmen, also from Birmingham, wrongly convicted of the bombing of two Birmingham pubs in 1974. The impact of the bombings themselves continues to this day, but so too does the impact of the police evidence on which the convictions were based – found 16 years later to be evidence created by police manipulation and fabrication that had been successfully suppressed.
The wrongful convictions of those six Irishmen in Birmingham in 1974 only began to unravel as part of a domino effect; the West Midlands Serious Crime Squad, many of whose officers had been involved in the fabrication of the prosecution evidence against the six men, continued to behave as recklessly as if they were in the wild west. Ultimately, the revelation of the repeated methodology used by named individual officers of creating false evidence in their notebooks came from too vast a pool of damning information to ignore; in case after case the same false propositions by the same officers which had convinced juries one by one in turn, when the names and the methodology was put together, the coincidences were overwhelming. Had the individual officers enjoyed anonymity – and a change of protected identity for each new operation, the six men would still be in prison today.
The curious features surrounding the finding of the bag constitute a dominant reason for concern.
The reporting of the verdict has suggested that the convictions came about as a result of a successful sting operation carried out by the undercover courier firm that required the employee to leave the key to his car with undercover officer “Vincent” who would park it in the premises whilst deliveries were made. That operation however for the best part of a month delivered nothing. The prosecution case depended upon accepting as true that on the one and only day when British Security officers would be present to insert bugging devices into Naweed Ali’s car (his first day at work when they would have opportunity and secrecy of access – he having handed his key for the car to be parked by Vincent in the premises while he made his delivery) there was there to be found,protruding from under the seat of his car, a bag with all the ingredients needed to convict him – an improvised pipe bomb with gunpowder inside, a number of shotgun cartridges and a meat cleaver with the word “kafir” scratched on it. Taped to a fake gun with sticky tape was a magazine with a
roll of sticky tape inside the bag too. The central thesis of the prosecution case was not that the men were entrapped into activity by a sting operation, but that a wholly accidental coincidence had unexpectedly occurred.
The defence lawyers had believed that the following factors would at the very least, satisfy a jury that they could not be certain that Naweed Ali had indeed known of the bag. There was no link of fingerprints with any of the defendants, the blanket surveillance kept on them by counter terrorism officers for more than a month before their arrest showed no activity capable of being interpreted as the acquisition of the bag or any of its contents. How could they under constant surveillance have accessed shotgun cartridges? How could they have assembled the component parts of an embryonic pipe bomb? And if they had, why would they assemble a bomb that was not viable which appeared to be understood to present no danger by its handler Vincent on its discovery? What of the account written retrospectively into a notebook claimed to have been compiled daily and at the time by Vincent for a month – that he had seen Khobaib Hussain with a “Multi coloured JD Sports bag”. How did that fit with the CCTV (retrieved only after Khobaib Hussain’s arrest and such a bag being said to have been found), of the purchase he actually made at JD Sports showing the bag to be in fact black and white?
The lack of evidential links between the defendants the bag and its contents – the position when the case began – came to be underscored dramatically when extraordinarily in the middle of the trial the telephones of Vincent the undercover officer in the premises throughout, were seized and deleted texts retrieved. More than a thousand exchanges including extraordinary and revelatory messages dating from the outset of the undercover operation in late July last year and into the ongoing trial at the Old Bailey this year, only intensified the defence suspicions as to what had in fact gone on.
A compelling picture jumped out from the schedules of the deleted text messages retrieved more than halfway through the trial – between the undercover office Vincent and his police colleagues working in the Special Projects Unit, and with Security Service personnel over the relevant time period.
Messages retrieved from the phones showed a striking theme, of prior anticipation by Vincent of evidence yet to be found. Anticipation too early in the light of its claimed accidental discovery was a constant feature. Examples only of many others are these:
At 9.50am on the 26th August 2016, the morning of any claimed find but before the evidence was said to have been discovered by the British Security Service who had arrived to plant bugs in Naweed Ali’s car, Vincent sent an urgent text message to his senior cover officer:
“They have just told me this is an intel only search … BSS will look and photograph anything but they can’t copy anything or forensically analyse anything !!!!!”
By 20.04 (before it was firmly established either that the seemingly real gun was an air pistol or that there was anything inside the pipes in the bag).
“From Vincent for what it’s worth:
In other words air pistol .. that magazine points to conversion to me … we will see … if powder in tube I bet they have been trying to use shotgun cartridges to make a pipe bomb!”
A further prediction at 20.43
“U getting updated from Simon mate … powder in pipe bomb … handgun may be conversion air pistol”
And by the following day:
“So usually they use stuff out of fireworks but now most of the shops selling them have CCTV … they must have broken some of those cartridges and emptied powder into the pipe … in my little world that is attempting to make an IED surely”
His running commentary continues:
“Those gas guns are a favourite for conversion they are easy to rebore and have a working action to the rear … the criminals love them for that reason so I’m guessing but I think mid conversion that’s why the clip was taped to the gun I reckon”.
Each key “find” is predicted by him in the deleted text messages – not least on the 22nd September,
“It’s a sticky tape story – you were right”.
(One significant oddity in the case was the late confirmation of DNA on a roll of tape, (the sticky tape prediction by Vincent made months before its confirmation) the prosecution producing it in evidence for the first time mid trial – yet the significant DNA was not that of Khobaib Hussain but his sister (their shared car had been parked on eight occasions in the courier unit whilst he did deliveries). Access to the car was enjoyed by one man – Vincent, the same officer in exclusive charge of Naweed Ali’s car too).
The only occasion on which the defence could penetrate the personal secrecy maintained for every aspect of his life however relevant to the case, came via an accidental fragment of potentially huge significance – one deleted text showed Andy referring to a photograph of Vincent with a “blunderbuss”, followed by an acknowledgement by another witness (not Vincent himself) that he was a firearms buff who would undoubtedly, as the owner of a shotgun licence, have easy access to shotgun cartridges. All other such potential evidence remained out of reach.
The implication of untruthful evidence and contradictory statements on oath disproved during the course of the trial.
Two aspects of the integrity of fundamental evidence emerged in the trial – the first concerned claims to the timing and circumstances of making of clamed contemporaneous notes and the second, the integrity of aspects of evidence given by key witnesses in court. The exceptional length of the trial was in large part caused by the investigation and seizure of their telephones from Vincent and other undercover officers. The seizure of those phones (and the finding of the raft of over a thousand deleted text messages) showed that throughout the giving of his evidence Vincent had been in constant touch with other officers, on occasion seemingly panicking as in the middle of the night while giving evidence on the 4th July Vincent to his undercover cover officer
“You up and about I want to run something past you?”
And again at 7.38 in the morning. Thereafter pressing calls from the undercover cover officer to track down a further officer. At 8am:
“I need to run something past him before start!”
Constant messages revealing meetings arranged between officers at lay bys on motorways and in the bars of hotels near the Old Bailey whilst they were in the midst of giving witness evidence in court, must be sufficient to shock any court as to the propriety and integrity of the evidence being given and the reliability and credibility of the witness himself. Denial of contact by the central witness in the case, only to be exposed by the discovered texts, must reasonably cause doubt about the very case itself. So too must the discovery of a claimed contemporaneously recorded notebook (the key to Vincent’s claimed sighting of Khobaib Hussain with a multi coloured JD Sports Bag). When inspected by the defence, the notebook contained a mismatch of sequence of events. It demonstrated without question that the notebook could never have been contemporaneously recorded during the undercover operation.
And If Vincent instead re-wrote his pocket book all in one go at a later date, what can be construed from that? A number of the most serious wrongful convictions in this country have rested upon precisely that – the claimed contemporaneous notetaking by police officers and the subsequently discovered proof positive that that could not have occurred. This was the key to the undoing of the convictions of the men wrongly convicted of the Birmingham pub bombings, it was the key to the undoing of the convictions of the four wrongly convicted of the Guildford pub bombings (and in turn their seven relatives, one of whom died in prison) and was the key to the undoing of the wrongful convictions of those convicted of the murder of PC Blakelock in Broadwater Farm.
The economics of newspaper and broadcast media coverage make it impossible for the detail of a trial that extended into five months to be monitored and assimilated.
Of the many significant factors that cause us to have profound concerns as to these convictions, these are only a few. However our concerns are so substantial, that we believe it wrong not to place several, albeit briefly on record now.
The police clearly considered throughout that they could safely achieve convictions.
Vincent to an undercover colleague at the start of the trial:
“That was useful today … but once again it made me realise again … I wouldn’t have wanted anyone else on the end of the phone … The situation we find ourselves in with BSS is not ideal (understatement) by the way I am even more determined to put in an Oscar performance when I get in that box … I know Cookie’s team think I’m an old school dinosaur but I don’t give a f*** what they think … they have never seen me give evidence … I wont let you down … I would die first. See you Monday ;-)”
To which the response came
“Ditto pal I wont let you down either even if it has been 25 years xx (Thumbs up)”
“LOL … we’re getting older … but not to old to twirl them and put them away for a long time ;-)”
Whilst that is indeed the outcome of the case at present, if defendants have been wrongly convicted, there is the necessarily the potential for a shift of comprehension, or the triggering of conscience on the part of one individual. We place on record today our belief that this can be achieved.
Birnberg Peirce Solicitors
3rd August 2017