Regina v Faryadi Sarwar Zardad

Court	Court of Appeal, Criminal Division, Great Britain (UK)
Case number	200505339/D3
Decision title	Judgment
Decision date	7 February 2007
Parties	Regina Faryadi Sarwar Zardad
Categories	Torture
Keywords	(Universal) Jurisdiction; taking of hostages; torture
Links	Judgment

Summary

After the withdrawal of Soviet troops from Afghanistan in 1989, the country was controlled by warlords. Faryadi Sarwar Zardad joined the political and paramilitary organisation Hezb-e Islami, founded in 1977 by warlord Gulbuddin Hekmatyar. In 1992, Zardad was in control of a checkpoint located in the town Sarobi located on the most important route between Kabul and Pakistan. He also exercised command over more than 1000 men who were said to have terrorised, tortured, imprisoned, blackmailed and killed civilians passing by the route. Zardad was found guilty of torture and hostage taking in Afghanistan and was sentenced to 20 years of imprisonment.

Procedural history

In July 2003, Faryadi Sarwar Zardad was arrested in London and charged with offences of torture and hostage-taking.

On 7 April 2004, a first interim judgment was handed down. This judgment dealt with the central question whether or not Zardad was a public official or a person acting in an official capacity in terms of Section 134 (1) of the Criminal Justice Act 1988 (the torture section). The status as a public official was required for prosecution under Section 134 of the Criminal Justice Act 1988, which implements the 1984 Torture Convention. The Defence for Zardad argued that Zardad was not a public official or person acting in an official capacity because there was a recognised government in Afghanistan at the relevant time, and because he was merely a member of a rebel faction that did not belong to that government (para. 7). The judge stated that although it could not be concluded that Zardad was a de jure public official, there was sufficient evidence that he was to be treated as a de facto public official (para. 56).

The second interim judgment of 8 October 2004 dealt with the charge of hostage- taking. This charge was brought under the Taking of Hostages Act 1982, passed in the UK to give effect to the International Convention Against the Taking of Hostages (1979). The judge allowed the charges to stand. However, the jury could not reach a decision and therefore the judge decided to adjourn the case.

On 8 June 2005, Zardad was retried before the Central Criminal Court in London, known as the Old Bailey.

On 18 July 2005, a jury convicted Zardad for the crimes of conspiring to torture and for conspiracy to take hostages, committed in Afghanistan between 1992 and 1996.

On 19 July 2005, Zardad was sentenced to 20 years imprisonment on each count to run concurrently. Furthermore, the Court recommended Zardad to be deported after having served his sentence.

Zardad decided to appeal the decision on the ground that the judge misdirected the jury in relation to an inconsistent statement made by a prosecution witness. He argued that if there was indeed such a misdirection, the convictions were unsafe.

Legally relevant facts

Zardad, also known as Zardad Khan, was a chief commander of the Afghan Hezb-e Islami faction which took part in the non-international armed conflict in Afghanistan that began in 1989 after the Soviet Union had withdrawn from the country.

Hezb-e Islami controlled areas to the south and southeast of the Afghan capital Kabul, including the town Sarobi, a major strategic centre which was located on the main route between Kabul and Pakistan. Zardad controlled a military base in Sarobi with a checkpoint positioned at an important point in the road. Zardad had approximately 1000 men under his command.

The Prosecution called on a number of witnesses who provided evidence of specific incidents of violence amounting to torture and hostage-taking that occurred at the Sarobi checkpoint between 1992 and 1996. One of these witnesses was a journalist called Stefan Smith.

The trial judge did give directions to the jury about how they should deal with the situation of a previously made inconsistent statement by a witness. In doing so, the judge referred, as an example, to the evidence of Smith. In the first part of the directions, the judge said that ‘if you are sure that the witness had previously made a statement which conflicts with his present evidence, you can take into account the fact that he made such a statement in the past when you are considering whether he is believable as a witness’ (para. 18). Furthermore, the judge said that ‘where an earlier inconsistent statement has been made and you are satisfied that there has been such an earlier inconsistent statement, you are entitled also, in addition, to consider the content of that earlier statement as evidence in the case’ (para. 18). Accordingly, the judge provided two different tests to the jury for determining whether the conflicting earlier statement had been made. First, whether the jury was “sure” that the witness had made such an earlier statement. Second, whether the jury was “satisfied” that the witness had made it.

Zardad was of the opinion that there were two things wrong with the directions given by the judge. First, it seems that the judge did put the burden of proof that the previous inconsistent statement was made onto the defence. Second, the use of the word “sure” was wrong as the jury did not need to be sure that Smith had made a previous statement before they could take account of it (para. 18).

Core legal questions

Did the trial judge wrongly transfer the burden of proof onto the defence?

Did the trial judge err in using the word “sure” when he gave directions to the jury?

Did the misdirection render the convictions unsafe?

Court's holding and analysis

On 7 February 2007, the Court of Appeal dealt with the two grounds of appeal raised by the Defence. First, the Court rejected the claim that the instructions given by the trial judge to the jury with respect to a previously made inconsistent statement wrongly transferred the burden of proof onto the defence. The Court held that ‘any party, whether prosecution or defence, seeking to undermine the evidence of a witness for the other side […], has to produce evidence, or to obtain it through cross-examination, to show that there actually has been a previous inconsistent statement’ (para. 23).

With respect to the second ground of appeal, the Court agreed that the trial judge misdirected the jury about the standard of proof to be applied to the previous inconsistent statement of one of the prosecution witnesses. The Court held that there was ‘no doubt that the judge did err when he used the word “sure” in the early part of the direction’ (para. 26). The Court, however, held that this misdirection did not render the convictions unsafe because even if the statement was admitted it would have casted doubt on some details of the incident but not on the crucial ones (‘the fact that such an incident had happened and that the appellant was involved’) (para. 39). Accordingly, the Court concluded that ‘the judge’s error in using the word “sure” in relation to the previous statement […] was not of significance in the case’ (para. 40).

Therefore, the Court concluded that it was ‘satisfied as to the safety of the convictions’ and subsequently dismissed the appeal (para. 41).

Further analysis

M. Gibney and S. Skogly, ‘Universal Human Rights and Extraterritorial Obligations’, Pennsylvania: University of Pennsylvania Press 2011, p. 22.

Additional materials

Summary 'CPS: The Counter Terrorism and Special Crime Division of the Crown Prosecution Service - Successfully concluded war crimes prosecutions since 2001', The Crown Prosecution Service.

‘Faryadi Sarwar Zardad’', TRIAL

S. Laville, ‘Landmark torture trial opens at Old Bailey’, The Guardian, 9 October 2004.

S. Laville, ‘UK court convicts Afghan warlord’, The Guardian, 19 July 2005.

P. Cockburn, ‘The warlords casting a shadow over Afghanistan’, The Independent, 11 May 2009.

Social media links

‘Afghan torture trial begins in UK’, BBC News, 8 October 2004.

‘Afghan warlord jailed for 20 years ( 2005 )’, the-old-bailey blogspot, 19 July 2005.

‘The warlords casting a shadow over Afghanistan’, Asian Window, 15 May 2009.

A. Glees, ‘War Criminals and the British Legal System’, The Centre for Security and Intelligence Studies (BUCSIS), 12 June 2009.

T. Kelly, ‘Why are 'others' always guilty of torture’, Dialogues, 8 November 2011.