John Berry

John Rodney Francis Berry was convicted on 24 May 1983 of an offence under section 4 of the Explosive Substances Act 1883, namely the making of a number of electronic timers in such circumstances as gave rise to a reasonable suspicion that they were not made for a lawful object. After a reference by the Secretary of State for the Home Department, the Court of Appeal quashed John Berry's conviction on 28 September 1993. The decision is reported at R v Berry (No.3) [1995] 1 WLR 7.

Background

John Berry was the oldest of Alan Feraday's high profile cases when the former Royal Marine Commando was prosecuted in 1983. Berry's company was selling electronic timers to the Syrian government. He didn’t seem to know what exactly they were to be used for, but it could have been anything, he and his defence argued. But the judge didn’t buy it after hearing the Crown's lone expert witness, the eminent Allen Feraday:

"I am of the opinion that they have most probably been specifically designed and constructed for terrorist purposes. I am unable to contemplate their use other than in a bombing context."

As Michael Tierney described it in his amazing 2005 Herald article, Alan Feraday’s assertion was that “the absence of safety devices in the timers prevented their use for legitimate purposes.” Mr Berry was sentenced to eight years for arming Arab terrorists, later reduced to six. He served less than four before he was released, Tierney reports, but was left legally guilty in his broken life.

Conviction quashed but restored

Former Marine and businessman John Berry was convicted of terrorism conspiracy charges on 24 May 1983, in the Crown Court at Chelmsford before Judge Greenwood and a jury. On 25 May 1983 he was sentenced to eight years' imprisonment. On 26 March 1984 the Court of Appeal (Dunn L.J., Stacker and Jupp JJ.) [1984] 1 W.L.R. 824 allowed the appeal and quashed the conviction. On 29 November 1984 the House of Lords (Lord Fraser of Tullybelton, Lord Scarman, Lord Diplock, Lord Roskill and Lord Brandon of Oakbrook) [1985] A.C. 246 ordered that the decision of the Court of Appeal be reversed and the conviction be restored.

During the proceedings in the House of Lords the applicant absconded to Spain. On 24 February 1989 he was expelled by the Spanish authorities and arrested at London airport.

Second Appeal adjourned

On 12 October 1989 the Court of Appeal (Watkins L.J., Tucker and Morland JJ.) adjourned an appeal against sentence pending an application that the Court could hear an appeal against conviction on grounds of appeal which had been argued but not decided in the Court of Appeal and which remained undecided by the House of Lords.

The case revolved around electronic timers, which Berry had supplied to a Syrian customer. The prosecution claimed that the devices were specifically designed for terrorist purposes and supplied in the knowledge that they would be used by terrorists. The Crown case relied largely on Feraday, who told the Court:

"As a result of an examination of the timing device I came to the conclusion that it was specifically designed and constructed for a terrorist purpose, that is to say to be attached to an explosive device."

Ten years in jail

Berry spent ten years in jail before his conviction was overturned for a second time in September 1993, when four highly qualified expert witnesses ridiculed the evidence that Alan Feraday had given at the trial. Their views were summed up by Dr John Wyatt who had served 23 years in the Royal Engineers, spending much of his time in bomb disposal and counter-terrorist operations, and rising to the rank of Lieutenant-Colonel. He said:

"As far as I am concerned this is only a timer, nothing else."

In a recent development, the Home Office has agreed to pay compensation from the public purse to Berry because he was jailed on the erroneous evidence of Feraday.

Trial

At the trial the Crown had alleged that the timers were designed and intended for use by terrorists to construct time bombs but Mr Berry claimed they had been supplied to the Syrian government and that they had numerous uses including for landing lights.

Of the four grounds argued before the Court of Appeal, the most relevant to Mr Feraday’s involvement in the trial was that relating to fresh evidence. It was agreed that Mr Feraday’s evidence had effectively been unchallenged at trial, as the only defence expert had accepted that he lacked experience in terrorist weaponry. It was Mr Feraday’s testimony that the timers made by Mr Berry could have been designed only for use by terrorists to cause explosions and as such it was critical to the conviction. He excluded non-explosive uses such as surveillance and lighting and suggested that legitimate armies would not use such timers because of the lack of an inbuilt safety device.

Appeal

However, the Court of Appeal heard fresh evidence from four experts, including Major Lewis and Dr Michael Scott, and stated that each of them disagreed with Mr Feraday’s "extremely dogmatic conclusion" about the timers, which they each felt were timers and nothing more, and which could be put to a variety of uses. In particular, whereas the absence of an inbuilt safety device in the timers might exclude their use by Western armies, the same could not be said of armies in the Middle East. Accordingly the verdict could not be considered safe.

Feraday banned

On 28 September 1993, Alan Feraday’s career prospects suddenly appeared to be in tatters when, in overturning John Berry's conviction, England's most senior judge, the Lord Chief Justice Lord Taylor of Gosforth, commented that although Feraday's views were "no doubt honestly held", his evidence had been expressed in terms that were "dogmatic in the extreme" and his conclusions were "uncompromising and incriminating". LCJ Taylor went even further saying that in future Feraday should not be allowed to present himself as an expert in the field of electronics. In 1995, Alan Feraday saw the writing on the wall and, aged 58, took early retirement after 25 years' service at the FEL when RARDE was subsumed into the less regal-sounding Defence Evaluation and Research Agency (DERA).