The terror law chief and the ‘cover-up’ that could explode UK’s biggest bomb trial
REVEALED: NEW LEGAL WATCHDOG USED ‘FAULTY EVIDENCE’ TO CONVICT 21/7 BOMBERS
THE top barrister just appointed as the new terrorism watchdog is accused of an alleged cover-up of vital evidence that could cause one of Britain’s biggest terrorist cases to collapse – the convictions of four men jailed for the ‘21/7’ attempted London bombings.
Max Hill QC, who has acted as lead prosecutor in many terrorist trials, was chosen last month by Home Secretary Amber Rudd to be the Independent Reviewer of Terrorism Legislation. He started the high-profile role last Wednesday – it requires him to monitor whether Britain’s terror laws are working fairly and to report to Parliament.
But The Mail on Sunday can today reveal that when Mr Hill presented the 21/7 bombings case to Woolwich Crown Court in 2007, the prosecution team he led had been warned that forensic evidence against the four defendants and another member of the gang might be deeply flawed.
Government scientists from the Ministry of Defence Forensic Explosives Laboratory (FEL) set out their concerns about the questionable evidence in a report before the trial. This should have been disclosed to the defence under rules to guarantee fair trials – but the report stayed hidden.
Mr Hill has said he was not aware of the FEL report before the trial.
But other documents, obtained by this newspaper, show he did know serious issues about the forensic evidence had been raised by FEL experts. These documents, published here for the first time, were also not disclosed before the trial. They include the minutes of a secret ‘case conference’ held on November 22, 2006, eight weeks before the trial began, with Mr Hill, Scotland Yard officers and other prosecution lawyers.
There Mr Hill personally quizzed Dr Stuart Black, an associate professor in Reading University’s archaeology department, who conducted forensic tests critical to the prosecution’s case. It is highly unusual for an archaeologist to be consulted in this capacity.
Dr Black’s evidence demolished the claims by the bombers that their devices were not designed to kill and maim. His tests supposedly proved that the devices were viable, and their chemical make-up was sufficient for them to detonate with destructive force.
But the case conference minutes, seen by the MoS, show Mr Hill pointed out to Dr Black that he had made a crucial ‘mistake’ about the chemical composition of the home-made bombs and that ‘a correction’ had to be made over their concentration.
Earlier that day, another document seen by this newspaper reveals that one of Mr Hill’s prosecution colleagues, who also attended the conference, had visited the FEL, which had been asked by investigators to review Dr Black’s work.
Astonishingly, the document – a copy of notes taken by one of the lawyers – shows FEL chief scientist Clifford Todd told them Dr Black had used the wrong method to test the explosives. Moreover, Mr Todd expressed concern that Dr Black was ‘not a forensic scientist, he is an academic’ and had a ‘lack of experience in forensic work’.
The MoS has established that Dr Black had never, before this time, been involved in a terrorism case.
According to the note, Mr Todd told the lawyers he could ‘pick lots of holes’ in Dr Black’s work, ‘especially re quality systems’. He had made ‘a basic error’ in calculating the proportions of chemicals in the explosive mixture, and had ‘got his figures back to front’.
When it came to the trial, Mr Hill did not disclose anything about the problems raised by Mr Todd and the FEL, nor did he mention the case conference to the defendants’ lawyers.
Four of the convicted bombers have now submitted a dossier to the Criminal Cases Review Commission (CCRC), asking it to order a fresh hearing at the Court of Appeal. In further documents seen by this newspaper, their lawyers claim Mr Hill’s failure to disclose documents relating to Dr Black amounts to a ‘bad faith abuse of process’ – so casting a potential shadow over Mr Hill’s role as Terrorism Reviewer.
Last night, leading counter-terrorism expert Professor Anthony Glees, director of the Centre for Security and Intelligence Studies at the University of Buckingham, said Ms Rudd’s decision to appoint Mr Hill was ‘bizarre’.
He added: ‘This is an extremely important job, but the right person would be a lawyer who has never been involved in terrorism cases at all – not one who has been prosecuting them for years.
‘It’s completely unacceptable to choose someone like Mr Hill, and it
‘Not a forensic scientist, but an academic’
amounts to a conflict of interest. The doubts over his role in the 21/7 case are a further reason to question the wisdom of appointing him, and I’m surprised he’s accepted it.’ Mr Hill has denied he was party to any cover-up. Last night he refused to comment on the case, but his spokesman said he ‘places the highest value on personal integrity and the maintenance of his professional reputation’.
The reason why Dr Black’s evidence was so important was that the 21/7 devices, carried in rucksacks by Muktar Ibrahim, Yasin Omar, Ramzi Mohammed and Hussain Osman on to three Underground trains and a bus, did not explode. They claimed in their defence that this was deliberate, telling the court they had intended only to terrify people to make a political point against Britain’s invasion of Iraq.
The 2005 incident took place just two weeks after the 7/7 bombings in which 52 people were killed by devices of an apparently similar type. The fifth member of the 21/7 gang, Manfo Asiedu, who abandoned his device on wasteground, eventually pleaded guilty to conspiracy to cause explosions. During the manhunt for the 21/7 bombers, police shot dead the innocent Brazilian Jean Charles de Menezes on a Tube train.
There was little doubt that all five men arrested were guilty of serious offences, which could have sent them to prison for many years – for example, conspiracy to cause explosions or possessing explosives. Having pleaded guilty to these offences, Asiedu was jailed for 33 years. He will be eligible for release on licence in 2023.
But to convince the jury they were guilty of conspiracy to murder – the most serious offence for which they were charged – the prosecution, led by Mr Hill and Nigel Sweeney QC, now a High Court judge, had to prove the devices had been viable as bombs. For this, they relied on Dr Black.
Dr Black told the court that his tests on the devices, using an innovative technique known Isotope Ratio Mass Spectrometry (IRMS), proved the devices were viable and capable of causing explosions strong enough to kill and maim.
He contended that the homemade explosive from which they were made had not, as the defendants claimed, been deliberately diluted with tap water.
At the trial, Dr Black’s evidence went largely unchallenged. The defence instructed an expert witness, but in court he admitted he was not an expert in IRMS.
Ibrahim, Mohammed, Omar and Osman were found guilty and sen-
tencedt dt to lif life, with ith a combinedbi d t totalt l of 160 years in jail. They were told they had to serve a minimum term of 40 years before they could be considered for release. In 2008, they fought and lost an appeal.
Then, in 2010, an FEL whistleblower contacted Stephen Kamlish QC, who had been Asiedu’s barrister. The whistleblower, Sean Doyle, had been the FEL’s chief research scientist, and is one of the world’s leading experts in Isotope Ratio Mass Spectrometry.
He told Mr Kamlish that long before the 21/7 trial, using a formal ‘miscarriage of justice procedure’ imposed in response to wrongful convictions in IRA bomb cases in the 1970s, senior FEL scientists had written a report that was highly critical of Dr Black.
It not only drew attention to flaws in his methods and calculations, but also stated IRMS should not have been used to determine whether the unexploded devices had been viablei bl b bombsb at all. It was, the report said, ‘the wrong tool’.
The FEL miscarriage of justice procedure states that if scientists invoke it, their report must normally be given to the defence and prosecution teams in a criminal case in order to ensure fair trials. No mention was made of the miscarriage report at the 21/7 trial.
In the wake of Mr Doyle’s revelations, Asiedu tried to appeal, claiming that ‘bad faith’ had infected the entire prosecution, and that the failure to disclose the FEL report amounted to a ‘cover-up’.
However, the Court of Appeal ruled that ‘while there may be criticisms which can properly be made of Dr Black’… ‘the failure of disclosure had no impact on Asiedu’s case, nor did it affect the voluntary nature of his guilty plea’.
Several Appeal Court hearings took place over three years. Mr Hill admitted the FEL miscarriage of justice report should have been disclosed, but maintained that neither he nor the Crown Prosecution Service ever saw it before the trial. A CPS spokesman repeated this assertion yesterday. He denied there had been a cover-up.
Pressed by the court, Mr Hill said in 2014 that all records of prosecution case conferences before the trial had now been reviewed, including those with Dr Black. There was, Mr Hill insisted, ‘nothing [more] to disclose’.
It was not until the last of the Asiedu hearings, on February 10, 2015, two days after this newspaper published details of Mr Doyle’s fresh evidence, that Mr Hill finally disclosed the minutes of the case conferencec on November 22, 2006. After the hearing was over, one of his colleagues also disclosed the records of the visitv to the FEL earlier that day, saying her notes had been in ‘deep storage’.
It went unreported because the court imposed a gagging order. We can report them now as it has been lifted. The court rejected Asiedu’s appeal. It said in its ruling that the FEL miscarriage of justice report ‘plainly’ should have been disclosed before the trial, but added there was ‘no evidence’ of a cover-up and found no bad faith or abuse of process.
The case conference note is on an official Metropolitan Police form.
The case conference minutes from 2006 suggest that Mr Hill had been briefed about the FEL’s concerns.
The minutes quote him as saying to Dr Black ‘a mistake has been made’ about a critical forensic issue – the ratio of flour to the chemical hydrogen peroxide, the two main components of the 21/7 devices.
Bombs of this type will explode only if this ratio is exactly right. ‘In terms of ratio, a correction has to be made,’ Mr Hill said. Following this, Dr Black made an ‘amendment’ to his statement, which admitted ‘a number of errors in the original report’. It was the information in this amended statement that formed the basis of his trial evidence. Nas a’ s Professor Max Coleman, an IRMS expert and former colleague of Dr Black at Reading, said: ‘Stuart doesn’t have this experience, but the police seem wedded to him. I can’t work out why.’ Scotland Yard and the CPS refused to comment last night, except to say that in the Asiedu appeal, the court found ‘no evidence of a cover-up’. A spokesman for the CPS said: ‘The Court of Appeal… highlighted the good faith of the prosecution team.’ Dr Black did not respond to requests for comment.
‘Police seem wedded to him - I don’t know why