Law Report: Convictions quashed over 'military use' description: Regina v Daghir and Speckman - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Hutchison and Mr Justice Buxton): 25 May 1994

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A judge's summing up which confused a general description of electronic equipment as 'specially designed for military use', the unlicensed export of which was prohibited under the Export of Goods (Control) Order 1989, with the use specifically for nuclear weapons alleged and relied on by the Crown in a prosecution under the 1989 Order, was a material misdirection to the jury, which could not be cured by the application of the proviso to section 2 of the Criminal Appeal Act 1968.

The Court of Appeal (Criminal Division) gave its reasons for allowing appeals by Ali Ashour Daghir and Jeanine Celestine Speckman against their conviction, on 12 June 1991, for conspiracy to export goods in contravention of the 1989 Order. Mr Daghir, an Iraqi national, was the managing director, and Mrs Speckman was an employee, of Euromac (London) Ltd, an English company, which had imported 40 capacitors from a company in California called CSI, intending to export them to a high security state research establishment in Iraq called al-Quaqaa.

But customs officials, engaged with their US counterparts in an undercover operation, had substituted dummies for the components before they reached Euromac, and then impounded them at Heathrow airport the next day when they were about to be taken to Iraq by Mr Amyuni, another Euromac employee.

Mr Amyuni was acquitted of the conspiracy charge, as was the company itself. Mrs Speckman, who arranged for the import of the capacitors from CSI, and Mr Daghir, who arranged their export to Iraq, were convicted.

Geoffrey Robertson QC and Geoffrey Cox (Janes & Co) for the appellants; Alan Moses QC and Gibson Grenfell QC (Customs & Excise solicitors) for the Crown.

LORD TAYLOR LCJ, stating the court's reasons, said the 1989 Order (SI 2376) prohibited the export of certain defined goods without a licence from the Secretary of State for Trade and Industry. Among the goods so defined in Schedule 1 were category ML4, headed 'Bombs, torpedoes, rockets and missiles guided and unguided', and ML11, 'Electronic equipment specially designed for military use and specially designed ODMA (operating, diagnostic, maintenance or application) software therefore'. No licence had been sought for the export of the capacitors.

To convict the appellants of the alleged conspiracy, two things had to be established apart from the existence of a relevant agreement: (1) that the capacitors were goods the export of which without a licence was prohibited by the order; (2) that the defendants knew the goods fell into a prohibited category.

At the trial, the prosecution put its case on issue (1) in a specific and narrowly defined way: that the capacitors were specially designed for the firing set of a nuclear bomb. Their case was therefore much more limited and specific than the general terms of the 1989 Order. In particular, category ML11 referred more widely to 'military use'.

As to issue (2) however, the prosecution sought to prove only that the defendants knew export of the capacitors was prohibited, in that they fell within the category of goods 'specially designed for military use', not necessarily use in a nuclear weapon.

The appellants complained that the judge wrongly left it open to the jury to convict if they found the capacitors were specially designed for any military use, instead of confining them to use for a nuclear weapon.

The judge's direction did not make clear that the jury were being asked to consider not the general prohibition, but the more limited case of nuclear use adopted by the prosecution. It exposed the appellants to a significant risk of being convicted on a basis different from that on which the case had been fought.

The defendants had adduced evidence to show that the capacitors were not for nuclear purposes, even though they might have some other military use. The summing up suggested the contest was between military use on the one hand, and civilian on the other. The jury could therefore have seen the defence evidence as itself enough to establish guilt.

A clear direction was required that, despite the general terms of the order, the jury had to be satisfied that the capacitors were designed for nuclear use, and that unless they were sure of that they must acquit.