Campaign for the Four Wrongly Convicted Birmingham Defendants
Naweed Ali, Khobaib Hussain, Mohibur Rahman, Tahir Aziz
[Appeal Court Rubber - Stamps Entrapment of Naweed, Khobaib, Mohibur, & Tahir}
The Key Disturbing Features in Their Case
1. The shocking realisation that in 2017, despite every development in the UK criminal justice system, defendants who were not guilty of the charges brought against them can nevertheless be convicted by a jury.
2. The even more shocking appreciation that the jury that convicted the four after a five-month trial, heard key police witnesses clearly lying about the basic evidence on which they had to decide guilt or innocence.
3. Not only did the jury, furthermore, hear clearly false evidence given on oath by police witnesses, but got to see more than a thousand deleted messages from the personal phones of police witnesses as they communicated with each other during the course of the month in which the wrongful arrests and prosecutions of the men were clearly being planned and achieved – messages that extended into the period of the trial itself as the police witnesses tried to contact each other and match the evidence they gave to the jury to other evidence appearing more and more dramatically (that contradicted what they said) as the case proceeded.
4. What was the case about?
5. In brief – a secret police unit, combined with the Security Service (MI5), took the decision to run an undercover operation in an attempt to obtain evidence after luring suspects into employment as couriers, making deliveries in courier vans and leaving their cars with their employer. Very clearly the courier vans, as well as the cars they left, were being fitted with surveillance equipment.
6. However, after a month of surveillance of the first defendant to be employed, Khobaib Hussain, no evidence of any criminal activity whatsoever was obtained w during his deliveries or in conversation in his van, or in his car.
7. The second man to accept the offer of courier employment, Naweed Ali, started work for the first time at the end of the first month (fruitless for the police) during which his friend and neighbour, Khobaib Hussain had carried out deliveries without any opportunity being provided by any of his activities for which he could be arrested. The prosecution's case depended entirely upon a jury believing that on his first day at work, the last day of that month, before going off on his delivery for several hours, Naweed Ali left under the car seat, having given his "employer" the key to his car, a bag sticking out from under the seat. The evidence given in the trial was that British Security Service operatives arrived on the premises an hour after Naweed Ali had been off making his delivery and began to search the car. The claim is that they found a bag under the seat of the car which contained a meat cleaver with the word "Kafir" scratched on it, a real looking (but fake) gun with a magazine taped to it by sticky tape, and an "improvised explosive device" – a "pipe bomb" consisting of a metal pipe with gunpowder inside. In addition, in the bag were a number of shotgun cartridges and a NATO bullet as well as a roll of tape and some napkins.
8. The question therefore for the jury was "Did Naweed Ali take those items in the bag and leave them in his car under the driver's seat? If he did not, who did?"
9. There were only two candidates. One, Naweed Ali, and the other undercover police officer, the "boss" of the fake courier firm, "Vincent" by name to whom Naweed Ali gave the keys of his car, who drove it inside the premises just as he had driven Khobaib Hussain's car inside the premises every time he, on nine occasions during the preceding month, had gone on courier delivery runs.
10. It is, perhaps surprisingly to many, remarkably difficult for an innocent defendant to prove his innocence – after all he may know very little to throw light on what has led him to be convicted. The situation of Naweed Ali was exactly that, and through him the other defendants whose convictions or acquittals depended upon him being first convicted or acquitted and them only by their alleged link to him (effectively a domino case – if one fell in any direction, the others must fall the same way logically).
11. Nevertheless, an enormous number of pieces of evidence fell convincingly into place to support the case that it was not Naweed Ali, and that it was Vincent who was responsible for putting the bag under the seat of the car.
12. Naweed Ali had from the time he was first arrested in the police station said that he knew nothing of the bag. Later on – after an unexplained three-month delay before he and the other defendants were told that the "boss" was an undercover police officer and that those who discovered the bag, were members of MI5 he began to understand the full picture. From the first moment Naweed Ali said that he knew nothing of the bag. When he discovered the identity of his boss, he stopped speculating and said that it explained it – there was clearly a pre-existing motivation to achieve his arrest and conviction (that after all was the whole purpose of the undercover operation, starting first with his friend and neighbour Khobaib Hussain).
13. But why not plant evidence on Khobaib Hussain if he was the initial target? The answer logically lay with the identity of the planter. If the Security Service had bugged Khobaib Hussain's car at the first opportunity when it was first left in the premises a month before (as they admitted they did at the first opportunity with Naweed Ali's car, the day of the plant and the day of his arrest) then thereafter if Vincent were responsible, he could not risk putting a bag in a car that was being monitored by the Security Service whether by audio or video monitoring or both. However, Naweed Ali's car left in his hands for the first time on the final morning, was free to have anything placed in it by Vincent before the Security Service operatives arrived one hour later to place their bugs in the car in Naweed Ali's absence whilst he was completing his deliveries (to Luton from Birmingham).
14. The defence from before the trial, but throughout the trial itself, were obliged to fight for disclosure of evidence that was in the hands of the police. It was not served on them as part of the official evidence in the police case, but had to be argued for in front of the judge as necessary but otherwise entirely missing. This evidence as it emerged established more and more the credibility of Naweed Ali's assertion – that he had nothing to do with the bag and its contents, and more and more the lack of any credibility to Vincent's assertion that it had nothing to do with him.
15. Key features that supported Naweed Ali's account were:
(a) That more than a month of surveillance showed nothing that Naweed Ali or Khobaib Hussain did that was consistent with them acquiring any of the items in the bag. Perhaps even more dramatically, the bag in question, a "Multi-coloured JD Sports drawstring bag" was a different bag than the one Khobaib Hussain had acquired when he made a purchase during that month at JD Sports. CCTV monitoring, showed that he emerged from JD Sports with a black and white bag. The allegation that Khobaib Hussain was seen by Vincent with a multi-coloured bag became a feature of a key document – Vincent's notebook that Vincent insisted he had filled in as a daily record in the course of the month that Khobaib Hussain had been employed by him.
(b) But other than Vincent's uncorroborated retrospective claim, no surveillance including his actual purchasing at JD Sports, showed Khobaib Hussain with such a bag.
(c) A second piece of "evidence" to link Khobaib Hussain with what was in the car found its way to the surface only in the second half of the trial. It was always a mystery why a fake gun would have a magazine taped to it with sticky tape and why a roll of sticky tape and some napkins might be in the bag as well. Why would anyone tape a magazine without meaning to a fake gun? The answer came late in the trial. The prosecution re-ran its forensic tests on DNA evidence suspected to have adhered to the roll of sticky tape previously. This time, a re-run with new methods showed a dramatic development – Khobaib Hussain's DNA was on the sticky tape. The defence conducted their own tests, took DNA samples from Khobaib Hussain's family, and came up with an even more astonishing fact – the DNA was predominantly that of Khobaib Hussain's sister.
16. Working through the logic of the DNA, it would more convincingly establish what the defence were saying than the prosecution. The car that Khobaib Hussain drove each day and left with Vincent was a car he shared with his sister. She gave evidence that she regularly left napkins in the glove compartment of the car. If the man who parked the car in his premises, Vincent, on each occasion it was left there needed to find a way to plant a sample of DNA, what opportunities might there have been to take a napkin from within the car, scrub it around the steering wheel, and rub it on to a roll of sticky tape? The difficulty for the prosecution was that in fact what was left on the sticky tape was really the wrong DNA – primarily that of Khobaib Hussain's sister.
17. The defence case in consequence, could regard itself as being massively supported by this evidence – whoever was aware no doubt by surveillance, that Khobaib Hussain had gone into JD Sports – they got the wrong bag. The multi-coloured bag was a one month promotional bag which someone going in to get themselves a sample would have been given, but Khobaib Hussain had in fact walked out with a black and white bag being given to him it seems in error rather than the month long promotional bag. The wrong bag and the wrong DNA were compelling positive features of the defence case.
18. The lack of any surveillance, the lack of acquisition of any items in the bag or even opportunity to have done so were compelling aspects too. But even more extraordinarily, came the revelations once the police phones were seized during the trial, after it emerged accidentally that text messages had been deleted but were retrievable - and should be ordered to be retrieved by the court, said the defence, once Vincent began to reveal the extent to which his evidence was being discussed with other officers whilst he was a witness in court in breach of every directive.
19. The text messages showed that Vincent was predicting every aspect of the evidence before it was "found" by the Security Service witnesses or analysed by experts. He described to others the contents of the JD Sports bag before they had been identified – to his supervisor and described the firearm as a "Beretta air pistol" at a time when all other witnesses had described it to be a real self-loading pistol. It was not discovered to be an air pistol until a firearms expert identified it as such later that evening and considerably after Vincent's description.
20. He was able too to describe the JD Sports bag before it had been removed from the car – the photographs taken by MI5 officers at their search showed that the JD Sports logo was not visible.
21. He predicted to an MI5 officer that something would be recovered from a search from the defendants' cars.
22. Frantic text messages from Vincent to his supervisor before the "find" to try and ensure that the MI5 search was "evidential" rather than "intelligence only". And Vincent handled the bag with a claimed improvised explosive device inside it despite having been told to evacuate the building and after the Bomb Disposal Squad had been alerted (undoubtedly a forceful reason being that he did so because only he knew that the device was not viable – it was not).
23. He further sent text messages to say, "It's a sticky tape story" attached to a winking emoji months in advance of the evidence that emerged during the prosecution case of Khobaib Hussain's DNA (albeit the more significant percentage his sister's).
24. And the level of concern amongst the 2 key undercover officers reflected in the messages echoed the kind of concern of guilty men – after the arrests – "cud u check wi BSS that the tec they fitted in Naweed Ali's car isn't running/recording and wont have been wen we were in unit earlier etc.? Thanx"
25. Or the multiple occasions on which officers were communicating with each other during the course of giving evidence, meeting in bars near the Old Bailey or in lay bys of hotels on motorways to discuss the case. Clearly honest officers, such as one undercover officer Haji was sent away from the scene inexplicably on a bogus enterprise long before the "find", Haji being told that "Something had developed" long before it had.
26. How could a jury have concluded (as they were directed by the judge) that the four defendants were only guilty if they were satisfied that the bag and its contents had not been planted by the police?
27. How could it even come about that a jury's verdict could fly in the face of the evidence it heard?
28. The four defendants are all appealing on detailed grounds of appeal argued, as they must be, on the basis of errors of law. It is not enough for an appeal to be successful to be able to assert convincingly, as the defence believe they could and still can, that the jury's verdict was wrong.
29. The grounds of appeal therefore are focussed on errors in the trial process. Some of these errors perhaps help to explain the convictions. The first was the refusal of the judge to discharge the jury after the terrorist attack on Westminster Bridge on the 22nd March 2017, just as the trial was beginning. The defence argued that the sheer horror of such a circumstance would inevitably have an impact upon a jury. The circumstances of the trial were exceptional; there had not been an attack on civilians in London since 2005. The impact of events (which took place so close to the court) must have been immediate, personal and emotive. The defence argued at the time that the circumstances were fast developing and that it was impossible for the court to assess properly the impact of the events and coverage of those events when new information was unfolding on an hourly basis.
30. The judge ruled nevertheless that the defendants could have a fair trial in the heightened climate surrounding the events in Westminster – necessarily, in a case where the defence was that police had fabricated evidence required a full bloodied criticism of the conduct of the police and Security Services at a time when both were being extensively praised as heroes and where a policeman had been killed in a terrorist attack.
31. Following the judge's ruling there were three further terrorist attacks during the course of the trial – the attack on the Ariana Grande concert in Manchester, the London Bridge attack, the attack near the Finsbury Park Mosque. The defence believe that the individual and cumulative attacks must have created a pressure upon the jury to convict and "not let the defendants go, for fear of a future attack" despite the evidence.
32. Secondly, the undercover police and Security Service witnesses enjoy a unique protection, that of anonymity. Not only are their identities allowed to be never made known, but nothing about their careers or their personal circumstances is available to be checked. In this case, the consequences were potentially extraordinary; in the midst of the trial, inadvertently, a deleted text message showed one officer congratulating Vincent on a photograph of him with a blunderbuss. By separate accidental revelations, Vincent was very clearly a firearms buff, with undoubted access to a shotgun licence. A critical revelation where shotgun cartridges (hard to obtain without a licence) were a key feature of the contents of the JD Sports bag. But no further enquiries were permitted. No search of his premises took place or was permitted. Despite clear perjury on a critically important aspect of the case (his notebook) could be progressed. His notebook, which he stated was written day by day in the month in which Khobaib Hussain was making deliveries, was proven to be no such thing (he had made some significant mistakes and got dates in the wrong order which could never have been written contemporaneously).
33. The re-writing of police notebooks was the reason why many convictions in the past were overturned lock, stock and barrel – the six wrongly convicted men of the Birmingham Pub bombings, the four wrongly convicted defendants of the Guildford Pub bombings, the three defendants wrongly convicted of the murder of PC Blakelock in Tottenham and multiple numbers of wrongly convicted defendants at the hands of the disbanded West Midlands Serious Crime Squad. Falsifying notebooks is a criminal act and in those cases, once discovered, had involved the immediate suspension of the police officers concerned, and enquiries set up by outside police forces. No such enquiries took place; the trial continued and Vincent was permitted to retain his blanket anonymity.
34. The defence will therefore argue in the appeals that the permission to continue anonymity created an irreparable injustice, an inability for the defence to enjoy, as they are guaranteed under the Human Rights Act to enjoy, an equal position with the prosecution.
35. There is of course massive inequality between a sole defendant who faces trial (in particular from prison) and the resources of the state in prosecuting him.
36. What is remarkable in this case, is even despite the lack of resources of the defence and lack of any ability to overcome barriers to investigation, nevertheless an avalanche of material damning to the prosecution case came to light. The question is if what was revealed, with so much effort, and so grudgingly, what more must there inevitably be or have been if an independent investigation had taken place?
37. The police officer in charge of the investigation itself (after the claimed "discovery" by Vincent and the Security Service) answered the question as to whether he had investigated at all the question of the police having "planted" the bag and the evidence. His answer in relation to investigating Vincent as an undercover officer, was that as a policeman Vincent had taken an oath, and investigation of him would therefore not be appropriate or necessary.
38. This approach and in the face of the evidence in this case as it unfolded, is not only baffling and shocking, but to many is like a rerunning of history. Lessons that were learned when dozens of men and women were found to have been wrongly convicted in the 1970s and 1980s were always understood to be able to hold good for all time. The defendants acknowledge that the jury considered other evidence that undoubtedly affected them and that that evidence was the responsibility entirely of the defendants themselves. Two, Naweed Ali and Khobaib Hussain, had been convicted years earlier of having travelled to Pakistan with the idea of attending a training camp. They were young, they had been encouraged to do so, and within two days of arrival in Pakistan they had spoken to their families and promptly come back home. They have been prosecuted, admitted their guilt, and served time in prison as punishment. (Mohibur Rahman had also spent time in prison accused of possession of a publication with terrorist content.) Furthermore, on a number of occasions the defendants by their behaviour clearly showed that they were avoiding surveillance interest by the authorities – two, Naweed Ali and Mohibur Rahman, explained this behaviour as having been triggered by unwelcome approaches by MI5 to recruit them as informants and their interests, exemplified by messages and data on their telephones, were in the world of engagement in armed conflicts involving Islam. The men all were inevitably "the usual suspects". As the police who targeted them undoubtedly thought, they might well be most likely to be engaged in activity dangerous to society. But they were not.
39. It is easy to understand that juries can take a wrong decision if consciously or unconsciously they are struggling with the complexities posed by being jurors in a criminal trial in the circumstances in which this trial was conducted. Many of the historic cases of what came to be finally understood to be wrongful convictions were brought about in almost identical circumstances. Overturning those convictions was for each a task of monumental difficulty – in the case of some more than 16, and in the case of one, 18 years. An understanding however that terrible mistakes can happen is a necessary appreciation to move forward for these defendants now.
(Unusually, lawyers in the case made an immediate statement after the jury's verdict. See Appendix.)