Notes for Assistance in Respect of BSB Charges Material relevant to charge 1. 1. In its most basic form the core of a defence of entrapment, if it existed, would be that if the jury were sure that the Defendant had committed the offence, but were of the view that he may not have done so if not for the fact he had been tricked into doing so by an agent of the state, they ought to acquit him. 2. In the context of the charges in this case, which (with the exception of count 4) were speech offences, merely to induce someone to say something which might be used against them subsequently in evidence, could not of itself amount to entrapment. This is because before whatever was said could constitute an offence, it must be said with the appropriate mental intent. In this case so far as Munir Farooqi was concerned his intent would have to be to prepare the listener for acts of terrorism or to commit murder (within the framework of terrorist activity). 3. The issue of intent was the primary issue in the case, as the court was aware. The court was also aware that if it had been Munir Farooqi continuously bringing up conversations about military jihad and arranging meetings with the undercover officers for that purpose, evidence of criminal intent would be very much stronger. On the other hand so far as conversations were being directed by others, it suggested they did not take place as a result of any enterprise by Munir Farooqi to 1
indoctrinate. 4. Accordingly the trial judge gave permission for the defence to address the jury on who was initiating meetings and conversations and present schedules dealing with those matters. Those schedules are referred to at page 566 D-H and page 569 B - 570 G, of my closing speech. Following the usual practice, copies of these schedules were provided to the trial Judge and Prosecution counsel before commencement of speeches who raised no objection. They were fully aware that I was going to suggest conversations and meetings were initiated by police officers and never suggested this would or could amount to a suggestion of entrapment. 5. It will be noted that the charge sheet refers to no specific passage where it was alleged I made an argument based on a defence of entrapment. In the course of my cross examination before the disciplinary tribunal, Mr Darbyshire did not put to me any passage where he alleged I had made such an argument. Miss Robinson in her submissions, rehearsed at paragraph 39 of the tribunal s reasons, also did not identify any passage where I had made such an argument. The tribunal, at paragraph 68, did not identify any passage in my speech where I had made that argument. 6. Therefore I regret to say that I can not provide any further assistance as to where that argument is to be found in my closing speech and I regret to say the reader will have to examine the whole speech to see if it is sustainable that the argument is present.. 7. I would however direct the reader to the following passages from my 2
speech, which might be thought are inconsistent with reliance on a defence of entrapment. Next I am going to suggest to you what this case is all about, and what I am going to suggest to you the case is all about is freedom of speech, and by that I do not mean the freedom for Munir Farooqi to say anything he likes, irrespective of whether that amounts to encouragement to others to commit illegal acts. What I am going to suggest the case is all about is the curtailment of legitimate religious and political comment. [page 548 para E-F] Of course as Mr. Edis correctly says once again, that right [freedom of speech] does not extend to inciting others to commit criminal acts, and there lies the solution, does it not? [page 553 para F-G] What you want is you want some person you can point to who is not a policeman, who you can say "Your target [Munir Farooqi] has attempted to radicalise him", but of course if the whole operation, the whole objective is based on a lie, because he [Munir Farooqi] has not been radicalising him, then no such person is going to exist prior to the start of the operation. [page 554 para A] What I am alleging is a conspiracy to make it look as though Munir Farooqi and others had been radicalising people to commit illegal acts when no such radicalisation was taking place. When there was no scheme to radicalise anybody by Munir Farooqi, [or] any other defendants. [page 559 para B] 3
The important thing is, Members of the Jury, that there is not one shred of evidence in this case that Munir Farooqi has ever been involved at any time in recruiting young vulnerable white men. [page 561 para A]...if you think they were. out to get Munir Farooqi, then the only [thing] which stands between him and an improper conviction may be me and a fair minded jury, because we assert that Munir Farooqi at no stage was indulging in the radicalisation of police officers. [page 561 para C] Members of the Jury, just in case there is any confusion here, and I do not think there is any confusion, you will be aware that. what we are saying here is that neither Munir Farooqi nor any of the other defendants in this case were engaged in recruiting anybody for terrorism, and that though there may have been attempts. to make it appear otherwise, as a matter of fact on the evidence, that is not what was happening. They were not recruiting for terrorism. If you were to come of course to the contrary view, well then, the only proper verdict on count one would be a verdict of guilty. Members of the Jury, on the facts of this case it is clear that is not what they were doing. [page 568 para D-E] 9. In the absence of the jury following an accusation of having advanced an entrapment defence in my speech: Well, my Lord, just on the entrapment point, entrapment if it were an offence [a defence], would be an offence [a defence] to an individual who had committed a crime, but was asserting that he ought to be 4
acquitted on the ground that he had been induced to do so. My Lord, we are not asserting that Munir Farooqi or Israr Malik has committed a crime, and I had indicated to the jury that if they find that they had committed a crime, then the proper verdict is one of guilty. So, my Lord, I hope we have been completely straightforward about that. My Lord, I have suggested, and 1 indicated much earlier on when your Lordship invited me to indicate what I would be saying to the jury, that I was going to suggest that the officers had misrepresented the relationship. Deliberately misrepresented the relationship between Munir Farooqi and themselves to the jury and misrepresented what was going on, and that has been the tenor of the submissions I have made to the jury in that regard. [page 598 para E-H] 10. And this extract from the summing up of Mr Justice Henriques, on 30 th August 2011. There is no defence known to the law as entrapment, and no defendant suggests in this case that they should be found not guilty because they were entrapped into committing a crime. Every defendant says I have not committed any crime. I did not try to persuade anybody to fight in Pakistan or Afghanistan. I did not knowingly and intentionally disseminate terrorist publications, and I did not incite anybody to murder. Nobody suggests they did commit a crime and yet were entrapped. [page 11]. 5
Charge 2 11. The relevant part of the speech is contained between page 549 A and 550 E. The relevant part of the tribunals reasons are at paragraph 69. 12. Again I will leave it to others to consider whether inviting a jury to critically evaluate views a judge appears to hold on the facts constitutes conduct which is prejudicial to the interests of justice. 13. I would only highlight that contrary to what has been said elsewhere there is no reference to dishonest salesmen, nor is there any reference to salesmen of worthless goods. There is a suggestion however, that a friendly disposition ought not lead to abandonment of critical evaluation. Charge 3. 14. The relevant parts of the speech are referred to within the charges. No doubt it will be noted that no witness impugned is particularised within the charges. This was despite request on my part. 15. The relevant part of the tribunals reasons are at paragraph 70. They appear to identify DCI Richardson as the only witness improperly impugned. 16. DCI Richardson s name was only mentioned once in the whole of my speech, in a passage at page 559 para B-D. I will leave it to others to consider whether he was impugned in that passage. Where I refer to unnamed individuals at other points of the speech, I was in no position to say the unnamed individual was DCI Richardson, else wise I would have 6
done so. I was not and am not in any position to suggest misconduct on his part. 17. It is correct however to say that I did not ask DCI Richardson if he was part of any conspiracy. He said he had no control over the day to day activities of the under cover officers and I was in no position to challenge him. Given that answer it followed, that had he been asked, he would have denied being party to any conspiracy, Again I would have been in no position to challenge him, but it would not have changed the content of the speech. Charge 4 18. This does not relate to my closing speech. The relevant part of the tribunals reasons are at paragraph 67. The view of the tribunal as to the scope of section 6A of the Criminal Procedure and Investigation Act 1996 ought to be of great interest to the criminal bar, if not concern. Charge 5 19. Originally there were 8 heads under this charge, 4 of which were either dismissed or discontinued prior to the tribunal hearing. The reference to the passages of my speech are contained within the charge. The relevant part of the tribunals reasons are at paragraph 71. 20. In the extract from Mr Justice Henriques summing up relating to corrections, he directs the jury to disregard my submissions on these factual issues as a matter of law, because he asserts I was giving evidence. 7