Rowe v R [2007] EWCA Crim 635

[2007] EWCA Crim 635

Case No 200505209 C4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

The Honourable Mr Justice Fulford

Sitting at The Central Criminal Court

T20040020

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15 March 2007

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

THE RIGHT HONOURABLE LORD JUSTICE LATHAM

THE HONOURABLE MR JUSTICE CRESSWELL

THE HONOURABLE MR JUSTICE HOLLAND

THE HONOURABLE MR JUSTICE BURTON

Between

RoweAppellant

RRespondent

(Transcript of the Handed Down Judgment of

WordWave International Ltd

A Merrill Communications Company

190 Fleet Street, London EC4A 2AG

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M. Mansfield QC and R. Menon for Appellant

M. Ellison and J. Rees for Respondent

Hearing Hearing dates : Wednesday 21st February 2007

Judgment

Lord Phillips CJ :

[1]On 23 September 2005 in the Central Criminal Court before Fulford J the appellant was convicted of two counts of possessing an article for terrorist purposes contrary to section 57 (1) of the Terrorism Act 2000 (‘the 2000 Act’). On the same day he was sentenced to 7 ½ years imprisonment on each count, the sentences to be served consecutively. On 18 October 2006 the full court, presided over by the Vice President gave him permission to appeal against conviction and referred his application to appeal against sentence to us. We gave him permission to appeal against sentence at the beginning of the hearing.

[2]The prosecution offered no evidence in relation to one of the two parallel charges under section 58; and no verdict was taken as to the other which was ordered to lie on the file. The jury failed to agree on a verdict in respect of a further count which charged breach of section 57 in respect of a modified sock ball. The prosecution did not seek a retrial on this count and a verdict of not guilty was entered by order of the judge. The appeal against conviction The 2000 Act

The appeal against conviction

[3]Section 1 of the 2000 Act defines terrorism as follows:

“1. – (1) In this Act ‘terrorism’ means the use or threat of action where- (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it – (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied. (4) In this section- (a) ‘action’ includes action outside the United Kingdom.”

[4]This appeal requires consideration not just of section 57 but also of section 58 of the 2000 Act. The two sections provide, in so far as material, as follows:

“57. – (1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism. (2) It is a defence for the person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism. (3) In proceedings for an offence under this section, if it is proved that an article – (a) was on any premises at the same time as the accused, or (b) was on premises of which the accused was the occupier or which he habitually used otherwise than as a member of the public, the court may assume that the accused possessed the article, unless he proves that he did not know of its presence on the premises or that he had no control over it. (4) A person guilty of an offence under this section shall be liable – (a) on conviction on indictment, to imprisonment for a term no exceeding 10 years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term no exceeding six months, to a fine not exceeding the statutory maximum or both. 58. – (1) A person commits an offence if- (a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or (b) he possesses a document or record containing information of that kind. (2) In this section ‘record’ includes a photographic or electronic record. (3) It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession. (4) A person guilty of an offence under this section shall be liable- (a)on conviction on indictment, to imprisonment for a term not exceeding 10 years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.”

The maximum sentence for breach of section 57 was increased, after the appellant’s conviction, by section 13 of the Terrorism Act 2006, from 10 to 15 years.

[5]Both sections have to be read subject to section 118 of the 2000 Act, which provides:

“118. – (1) Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter. (2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. (3) Subsection (4) applies where in accordance with a provision mentioned in subsection (5) a court – (a) may make an assumption in relation to a person charged with an offence unless a particular matter is proved, or (b) may accept a fact as sufficient evidence unless a particular matter is proved. (4) If evidence is adduced which is sufficient to raise an issue with respect to the matter mentioned in subsection 3(a) or (b) the court shall treat it as proved unless the prosecution disproves it beyond reasonable doubt. (5) The provisions in respect of which subsections (2) and (4) apply are- (a) sections….57, 58….of this Act.”

The facts

[6]The article the possession of which was the subject of the first count was a W.H. Smith notebook containing manuscript notes that included instructions on how to assemble and operate a mortar. It was accepted that the handwriting was that of the appellant. The article the possession of which was the subject of the second count was a substitution code, found in a video case. This code set out a list that included articles or places, each bearing a code that consisted of a particular model of mobile phone. The articles included components of explosives. The places included the type of venue susceptible to terrorist bombing, such as ‘airport’, ‘army bases’. The list also included ‘Target 1, Target 2, Target 3. There was a second list of countries, ‘Bosnia, Poland, Romania, Bulgaria, Albania, Czechoslovakia, Hungary and Yugoslavia’, against each of which was an English county, by way of code. The code was in the handwriting of the appellant.

[7]The most recent of the phone models used as code was manufactured in 2003, which demonstrated that the code had come into existence in or after March 2003.

[8]The appellant is married, but he did not live with his wife and children. The W.H.Smith notebook was found at the address where the appellant had lived in London. The substitution code was found in the house where his wife and children lived in Birmingham. The appellant accepted that both articles were in his ‘possession’ for the purposes of section 57. Media found at the Birmingham house included videos espousing and promoting the ideological and religious cause followed by Muslim extremists who believe that it is their duty to wage a Jihad against perceived enemies of Islam. They included the living wills of the 9/11 attackers.

[9]The appellant was arrested at Coquelles in France on 24 October 2003 as he tried to enter the United Kingdom on a coach bound for Victoria Station, London. It was the prosecution case that the appellant was shortly to embark on a terrorist venture and that both the notebook and the substitution code were held for terrorist purposes.

[10]The appellant gave evidence. He had given no advance notice of the explanation that he advanced for his possession of the notebook and the substitution code. He said that he was not a terrorist and that the videos that had been found in his wife’s house at Birmingham were nothing to do with him and contained matter that was abhorrent to him. Far from being involved in offensive activities he had been involved in lawful defence of Muslims who were being exposed to unlawful violence and atrocities in Bosnia and Chechnya.

[11]So far as the W.H. Smith notebook and its contents were concerned, the origin of these was a trip that he had made to Croatia in 1995 to help the Muslims to defend themselves against the Serbs. He crossed into Bosnia to see evidence of Serb atrocities. He stayed in a house that was a base for a military unit and there made notes from a book that provided instructions in relation to the use of artillery. He was subsequently injured when a convoy in which he was travelling was blown up. He returned to England, with the notes that he had made, and transcribed them into the W.H.Smith notebook as a memento of his experience. He had not intended to make any use of the notes other than as memorabilia that might impress his friends.

[12]His explanation for the substitution code was that he had made this in connection with a humanitarian plan to act as a courier to take out items that were needed by Muslims under attack or persecution in Chechnya. He had agreed to do this at the request of a man in Frankfurt, to whom he had been sent by another man in this country. The substitution code, which had been dictated to him, listed some of the items that he would be asked to take to the vicinity of Chechnya, and the countries from which such items would be obtained. Ultimately, he had decided that he was not prepared to carry out this service and had travelled to Frankfurt to inform the man there of this. He had been arrested on his way back to England.

[13]The prosecution response to this was that, while he might have been engaged on expeditions abroad, these were not for the humanitarian purpose that he had described. His evidence was opportunistic fabrication to explain the evidence placed before the jury by the prosecution. He had waited until giving his own evidence to put this forward because it had to be tailored to meet that case.

The additional ground of appeal

[14]It is convenient to deal first with an additional ground of appeal that we gave permission to advance at the start of the hearing. It was founded on a recent decision of this court in R v M,Z,I,R & B

[2007] EWCA Crim 218

. The appeal was against a ruling by the Recorder of London, brought by appellants charged with offences under sections 57 and 58 of the 2000 Act. There were pairs of counts, one under section 57 and one under section 58 relating to identical items. These were electronic storage devices, such as hard discs, or print outs from these, containing what were alleged to be terrorist propaganda. In the section 57 counts they were described as ‘articles’, in the section 58 counts as ‘documents or records containing information’

[15]The appellants raised, by way of preliminary issue, the question of whether possession of the items in question was capable of constituting offences under section 57. Contrary to the appellants’ submission the judge ruled that they were. The issue was formulated for the appeal as follows:

“Is data electronically stored on compact discs or computer hard drives capable of being an ‘article’ for the purposes of section 57 of the Terrorism Act 2000”

But it was agreed that the argument should extend to cover documents.

[16]The material part of the judgment of the court, delivered by Hooper LJ, was as follows:

“32. It was submitted to the Recorder that ‘data’ is not an article. Although the Recorder rejected that argument, in our view the issue was whether the items listed in the section 57 counts are ‘articles’ not whether the data is an article. The items listed in section 57 counts are all articles. Is there any difference between the documents in Count 14 and the various storage devices in that and in the other section 57 counts? Mr Bennathan and the other counsel for the appellants submit that there is. We do not agree. There is no practical difference between a book which a person can read (perhaps with help) and a CD which can be read by inserting it into a computer. To submit that the CD is not an article because it can only be read with a computer seems to us farfetched. We thus agree with the Recorder, albeit for slightly different reasons. 33. But that is not, in our view, the end of the matter. It was submitted to the Recorder on behalf of the defendants (page 4 that the prosecution’s interpretation of section 57, in effect, made section 58 redundant. Any ‘document or record’ made or possessed will be an ‘article’ and section 57 applies. The Recorder did not, so Mr Edis concedes, deal with this argument. 34. It is submitted that section 58(1)(b) is completely redundant and nearly all of section 58(1)(a) is also redundant. As Mr Edis submitted to us, the only conduct which, so it appears, would be caught by section 58 only would be someone ‘collecting’ information but not writing it down. 35. Mr Edis accepted that his argument was novel. In no case had section 57 or its similarly worded predecessors ever been used for the making or possession of documents or records. No one has ever suggested, so it appears, that those who call in writing for attacks on non-Muslims could be convicted under section 57 of possessing an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the instigation of an act of terrorism. During the recent debate about the provisions of the Terrorism Act 2006 criminalising the ‘glorification’ of terrorism, it has not been suggested (so it appears) that section 57 of the 2000 Act had already gone a long way to criminalize this kind of conduct. 36. is Mr Edis right? In our view, and bearing in mind that penal statutes should be strictly construed, Mr Edis is not right. It is apparent from the wording of the two sections and their juxtaposition that Parliament has laid down a different regime for documents and records and intended so to do. For the purposes of section 58 possession of a document of a kind likely to be useful to a person ‘instigating’ an act of terrorism is not enough (unless, of course, the document is also of a kind likely to be useful to a person ‘committing or preparing’ an act of terrorism’). Parliament has not chosen to use ‘diffusely drawn terms’ of section 57 (to adopt the words of Mr Edis in describing section 57) when the making or possession of documents or records is in issue. Mr Edis rightly submitted that legislation can and often does create overlapping offences. But Parliament could not have intended that the regime for documents and records in section 58 could be sidestepped by using section 57 and describing them as articles. Section 58 is not redundant.”

It followed that the appellants’ appeal was allowed.

[17]The Court certified that its decision raised the following point of law of general importance:

“Is the possession of literature or other information in electronic and/or printed form caught by section 57 of The Terrorism Act 2000?”

However, the Court refused permission to appeal to the House of Lords.

[18]There was some debate before us as to the scope of the Court’s decision. We read the decision as holding that ‘articles’ within the meaning of section 57 cannot extend to documents and records because express provision is made for these items under article 58. Mr Mansfield QC for the appellant appeared to have formed the same view, for he founded an additional ground of appeal on Hooper LJ’s judgment. In his application for permission to add this ground he averred that Hooper LJ had held that “documents and records of information are not articles for the purposes of section 57”. He went on to submit that “the mortar notes and the substitution code were records of information and not articles for the purpose of section 57. Consequently Mr Rowe should have been prosecuted under section 58 (1) and not under section 57(1) in respect of the mortar notes and the substitution code.”

[19]Mr Mansfield supported this submission when he opened his appeal to us. In response, having heard argument of Mr Ellison for the prosecution, he appeared to withdraw the submission. Mr Ellison submitted that the Court’s decision was reached per incuriam and was wrong. He submitted that we had jurisdiction to review the decision in accordance with the principles laid down by this court in R v Simpson

[2003] EWCA Crim 1499

;

[2003] Cr App R 36

. He further submitted that it was desirable that we should exercise this jurisdiction to redress the position without delay. Apart from R v M, Z, I, R, & B, there are other prosecutions pending in which defendants have been charged under section 57 in relation to possession of documents.

[20]The first question is whether it is open to this court to depart from the decision of this court in R v M, Z, I, R & B. On this question we have looked to the decision of this court in R v Simpson for guidance. The substantive issue in that case related to the jurisdiction to make a confiscation order, but it is the procedural issue that is of importance. There was a decision of this court in R v Sekhon

[2002] EWCA Crim 2954

, which appeared to have resolved the substantive issue in favour of the Crown. That decision, however, had declined to follow an earlier decision of the court in R v Palmer

[2002] EWCA Crim 2202

on the ground that it was wrongly decided. The decision in Palmer had had unfortunate consequences, for it had resulted in the confiscation of very substantial sums being held unlawful on the ground of a mere technicality.

[21]The appellant in Simpson argued, somewhat paradoxically, that this court should not follow the decision in Sekhon because, in Sekhon,the court should have been bound by the previous decision in Palmer. With perhaps equal paradox, counsel for the Crown argued that the court was bound by its decision in Sekhon to hold that Palmer was wrongly decided.

[22]Giving the judgment of the court, Lord Woolf CJ started by setting out the established situations in which the Court of Appeal could depart from one of its previous decisions, as summarised in Halsbury’s Laws of England 4th Ed Vol 37 para 1242:

“(i) where the Court has acted in ignorance of a previous decision of its own court or a court of coordinate jurisdiction which covered the case before it. If this is the case the Court must decide which case to follow; (ii) where the Court has acted in ignorance of a decision of the House of Lords; (iii) where the Court has given its decision in ignorance of the terms of a statute or a rule having statutory force; or (iv) where in exceptional and rare cases, the Court is satisfied that there has been a manifest slip or error and there is no prospect of an appeal to the House of Lords.”

None of these was applicable. Lord Woolf then commented at paragraph 27:

“…the paragraphs in Halsbury should not read as if they are contained in a statute. The rules as to precedent reflect the practice of the courts and have to be applied bearing in mind that their objective is to assist in the administration of justice. They are of considerable importance because of their role in achieving the appropriate degree of certainty as to the law. This is an important requirement of any system of justice. The principles should not, however, be regarded as so rigid that they cannot develop in order to meet contemporary needs.”

[23]Lord Woolf then referred to two statements made by Lord Diplock. The first, as Diplock LJ in R v Gould

[1968] 2 QB 65

at p. 68 was to the effect that the Criminal Division of the Court of Appeal is not rigidly bound by the doctrine of stare decisis. The second, in DPP v Merriman

[1973] AC 584

at p. 685 stated that the liberty of the Criminal Division to depart from precedent which it was convinced was erroneous was restricted to cases where the departure was in favour of the accused.

Lord Woolf commented:

“34. There is nothing to suggest in Merriman that Lord Diplock was reminded of what he said in Gould. We appreciate that there may be a case for not interpreting the law contrary to a previous authority in a manner that would mean that an offender who otherwise would not have committed an offence would be held to have committed an offence. However, we do not understand why that should apply to a situation where a defendant, as here, wishes to rely upon a wrongly decided case to provide a technical defence. While justice for a defendant is extremely important, justice for the public at large is also important. So is the maintenance of confidence in the criminal justice system. If the result in the Palmer case had to be applied to other cases even though the Court of Appeal had acted in ignorance of the appropriate approach this would indeed, reveal a most unattractive picture of our criminal justice system’s ability to protect the public. 35. Here we prefer the approach indicated in Bennion on Statutory Interpretation (4th ed, 2002) at p. 134 which states: ‘The basis of the per incuriam doctrine is that a decision given in the absence of relevant information cannot be safely relied on. This applies whenever it is at least probable that if information had been known the decision would have been affected by it.”

[25]The Court of Appeal approached the case on the basis that the essential question was whether it could depart from the decision in Palmer rather than whether the court in Sekhon had been entitled to do so. Thus Lord Woolf remarked:

“…it is not wholly without significance that the present Court is constituted by five members of the Court of Appeal Criminal Division. We consider a degree of discretion remains in this Court to decide whether a previous decision should be treated as a binding precedent in future or not when there are grounds for saying that the decision is wrong. In exercising that residual discretion, the constitution of the Court is of relevance.”

[26]The court concluded that the law was misunderstood and misapplied in Palmer. Because the court in Palmer had not been referred to all the relevant authorities and some of these were in conflict, Lord Woolf held that there were ample grounds for regarding the decision as irregular and not binding. It seems to us, however, that the dominant reason why the court did not follow Palmer was not any procedural irregularity but the firm conviction on the part of the court of five that the decision in Palmer was manifestly unsound and its consequences manifestly unsatisfactory.

[27]The procedure by which the court reached its decision in R v M,Z,I,R & B had features that were unsatisfactory. The court ruled that Parliament had intentionally laid down in section 58 a different regime for documents and records to that provided for other articles in section 57. It followed, inferentially from this, that this regime could not be sidestepped by bringing a charge under section 57 in respect of articles that constituted documents or records. This reasoning did not reflect the written submissions prepared by the appellants for the appeal and was thus not addressed by the respondent’s written submissions. It is not even clear to us that it reflected oral argument advanced by the appellants. In these circumstances it is not surprising if the point was not dealt with by the prosecution as adequately as it might had they received notice of it. Furthermore the judgment was effectively extempore, beingdelivered the day after the hearing, so that the court had little time for reflection or research.

[28]These facts may explain statements made in the judgment that we believe would not have been made had the prosecution been forewarned of the points that led to the appeal being determined in favour of the appellants and able to prepare properly to answer it. The first was:

“in no case has section 57 or its similarly worded predecessors ever been used for the making or possession of documents or records”

. The second was:

“Parliament could not have intended that the regime for documents and records in section 58 could be sidestepped by using section 57 and describing them as articles”

. Both these statements are put in doubt by R v DPP, Ex parte Kebilene.

[2000] 2 AC 326

[29]The origins of sections 57 and 58 of the 2000 Act lay in legislation designed to address terrorism in Northern Ireland. The corresponding provisions of the Prevention of Terrorism (Temporary Provisions) Act 1989 were as follows:

“16A (1) A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism to which this section applies. (2) The acts of terrorism to which this section applies are – (a) acts of terrorism connected with the affairs of Northern Ireland; and (b) acts of terrorism connected with the affairs of Northern Ireland; and (b) acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland. (3) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above. 16B (1) No person shall, without lawful authority or reasonable excuse (the proof of which lies on him) – (a) collect or record any information which is of such a nature as is likely to be useful to terrorists in planning or carrying out any act of terrorism to which this section applies; or (b) have in his possession any record or document containing any such information as is mentioned in paragraph (a) above.”

[30]Kebilene concerned charges brought under section 16A. In issue was the decision of the Director of Public Prosecutions to bring proceedings under this section which, so it was alleged, contained provisions contrary to

Article 6 of the European Convention on Human Rights

. What is of relevance for present purposes is the articles in respect of which the charges were brought. These were set out in the judgment of Lord Bingham of Cornhill CJ in the Court of Appeal as follows:

“The particulars of the offence charged against the applicants Kebilene, Boukemiche and Souidi alleged that they ‘had in his possession a quantity of documents, cards, money and books in circumstances which give rise to a reasonable suspicion that those articles were in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism.’ The particulars of the offence charged against the applicant Rechachi under section 16A were that he ‘had in his possession a quantity of documents, cards, money and books in circumstances which give rise to a reasonable suspicion that those articles were in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism.’”

[31]Lord Bingham said this about the two sections at p. 336:

“Both sections, it is clear, have grown as a response to Irish terrorism, although the application of those sections has now been extended. They are directed not to unlawful possession of explosives or firearms, both of which may be the subject of prosecution without resort to these sections, but to the possession of articles and items of information innocent in themselves but capable of forming part of the paraphernalia or operational intelligence of the terrorist.”

[32]We would make a number of points: i) This was an example of a predecessor to section 57 of the 2000 Act being used in relation to the possession of documents and records. We would add that apart from the present case there are a number of other instances of prosecutions being brought under section 57 in relation to documents or records. ii) It did not occur to anyone in Kebilene that a charge under section 16A could not be brought in respect of documents. iii) In re-enacting equivalent provisions in the 2000 Act Parliament can be assumed to have intended that the sections should have the scope that their predecessors had been accepted to have.

[33]Thus important assumptions made by this court in R v M,Z,I,R & B were wrong. Nor was it correct to say that the Recorder had not dealt with the argument that, if documents and records constituted ‘articles’ for the purposes of section 57, section 58 was made redundant. He dealt with this (and we have corrected what we believe must be an error in the transcript) when he said:

“The recording of information is a discrete activity. What is recorded then is a hard, physical article, which is separate from the process of recording what has been recorded”

[34]There is undoubtedly an overlap between section 57 and 58, but it is not correct to suggest that if documents and records constitute articles for the purpose of section 57, 58 is almost superfluous. Collecting information, which falls within section 58 alone, may well not involve making a record of the information. Equally a person who possesses information likely to be useful to a person committing or preparing an act of terrorism may well not be in possession of it for a purpose connected with the commission, preparation or instigation of an act of terrorism.

[35]Sections 57 and 58 are indeed dealing with different aspects of activities relating to terrorism. Section 57 is dealing with possessing articles for the purpose of terrorist acts. Section 58 is dealing with collecting or holding information that is of a kindlikely to be useful to those involved in acts of terrorism. Section 57 includes a specific intention, section 58 does not.

[36]These differences between the two sections are rational features of a statute whose aims include the prohibition of different types of support for and involvement, both direct and indirect, in terrorism. There is no basis for the conclusion that Parliament intended to have a completely separate regime for documents and records from that which applies to other articles.

[37]For these reasons we have concluded that the decision in R v M,Z,I,R & B was based on false assumptions and false analysis and that it was wrong. Does the guidance to be derived from Simpson indicate that we should not follow it?

[38]There is an important difference between this case and Simpson. The court has certified a point of law of general public importance. We, if asked, would do the same. If we felt compelled to follow R v M,Z,I,R & B we would also, if asked, give permission to appeal to the House of Lords. We have considered whether this is the appropriate course. We have decided that it is not. This is not a case, such as Simpson, where the predominant reason for not following a previous decision was that it was manifestly unsound. In this case the unsatisfactory features of the procedure that we have described above have had the result, not merely that the court reached a decision that is manifestly unsound, but that it did so in circumstances that were truly ‘per incuriam’.

[39]If we follow R v M,Z,I,R &B the result will be that both that case and a number of other prosecutions under section 57 will be dealt with on what we believe will ultimately be demonstrated to be a false footing. We do not consider that this would be acceptable. Accordingly we propose to treat the decision as wrongly reached per incuriam and to reject the new ground of appeal, which has in the event effectively not been pursued.

The original ground of appeal

[40]This ground of appeal is founded upon the following premise. The appellant would not have infringed section 57 if he had intended to make use of the mortar instructions or the conversion code for a single action or activity that involved serious violence to people or damage to property but which served the following dual purpose:(i) defending Muslims from unlawful attack and

(ii) advancing a political, religious or ideological cause. In other words, possessing the documents for a proposed action that had all the ingredients of terrorism, as defined by section 1, did not breach that section if the intended action would (section 1 apart) have constituted lawful defence of third parties. At the trial the prosecution and the judge proceeded on the basis that this proposition was correct (although in his ruling in the absence of the jury Fulford J expressly left the point open for future argument). It has since been placed in doubt by the recent decision of this court in R v F

[2007] EWCA Crim 243

but Mr Ellison for the prosecution has made it plain that, for the purpose only of this appeal, he is content that the premise should be treated as correct.

[41]In discussion with counsel on 19 September 2005 the judge raised the possibility that the jury might conclude that the appellant was bent on an activity that had a dual purpose of the kind described above. He said:

“Mr Justice Fulford: It seems to me, Mr Ellison, speaking aloud, that there is a real possibility one of the avenues the jury could go down is to say that the defendant probably did feel a huge amount of sympathy and wanted generally to help those in Bosnia in the mid-1990s and those in Chechnya later, who had suffered, but that he also was, as it were, participating in an ideological struggle of the kind which the section is directed at, and that if they came to the conclusion that both of those things operated on the defendant’s mind, then it may be they will need some assistance as to what they should do with the fact they had concluded that both operated.”

[42]It is not easy for us to envisage why it was that the judge thought that the jury might be troubled in this way. It was the appellant’s case that his possession of the documents was as a result of past events and not for any planned activity. None the less the judge went to great pains, including lengthy discussions with counsel, in an attempt to deal clearly with this point in his summing-up.

[43]There were originally a number of grounds of appeal, but in the event Mr Mansfield relied on only the first of these. This was, in effect, that the judge did not direct the jury with sufficient clarity that they must acquit unless satisfied beyond reasonable doubt that the appellant possessed the articles for a terrorist purpose that was not combined with a defensive purpose.

[44]We will set out the principal passage in the summing up relied upon by Mr Mansfield:

“…an issue you will need to consider (depending always on the conclusions that you have reached as regards the relevant facts) is whether the defendant may have been in possession of the particular item which is the subject of the count only in order to defend fellow Muslims from assaults. Another way of saying ‘assaults’, members of the jury, is unlawful violence and/or atrocities by others. The law recognises the right of individuals to use reasonable force in the prevention of crime, which includes by repelling by reasonable force unlawful attacks. Accordingly, if the defendant may have been in possession of the article or item you are considering for the defensive purpose, then your verdict on the count would be not guilty. However, because the offence is proved if you are sure that the defendant’s possession of the article was for a purpose connected with the threat or use of action (of the serious kind defined) and for the purpose of advancing a political, religious or ideological cause, it follows (provided you are sure that the purpose is proved) the defendant would still be guilty of the offence if he also was in possession of the article for this separate purpose, so long as it was distinct from possession for the defence of Muslims from assault and/or atrocity by others. Accordingly, in order to establish this part of the offence, the prosecution must prove so you are sure that the defendant was in possession of the object for more than the limited purpose of defending fellow Muslims from assaults and/or atrocities. They must prove that, separately from any defensive purpose and activity, he was also I n possession of the article for a separate and different purpose and activity connected with the commission, preparation or instigation of an act of terrorism. In this regard, it is important to distinguish between ideology and purpose. A person who may be in possession of an article for the purpose of the defence of others may have strong religious, ideological or political beliefs. Those beliefs are only relevant to your assessment of whether you were sure that, rather than having possession of the article for the purpose of the defence of others, he was also in possession of the article for a (separate and different) purpose of advancing a political, religious or ideological cause in circumstances which were not connected with the defence of Muslims from unlawful violence and/ or atrocities.”

[45]What the judge set out to do in this passage was to explain to the jury that, if they were to convict, they had to be satisfied that one purpose for which the appellant possessed the documents was for activities that were exclusively terrorist, even if he had a second purpose that was for other activities that were wholly or partly defensive. It is common ground that such a direction accorded with the law.

[46]We are inclined to agree with Mr Mansfield that the first part of the direction, had it stood alone, would not have explained the position with sufficient clarity. The subsequent direction, however, that:

“they must prove that, separately from the defensive purpose and activity, he was also in possession of the article for a separate and different purpose and activity” (our emphasis) stated the position with complete clarity. The same is true of the final part of this passage which refers to a “separate and different purpose”: “in circumstances which were not connected with the defence of Muslims from unlawful violence and/or atrocities”

The judge returned to this topic in a short passage towards the end of his summing up:

“Mr Mansfield stressed something that I have underlined heavily in the directions in law which I gave to you yesterday, that if Mr Rowe was doing no more, or may have been doing no more, than going to the defence of Muslims, using reasonable force to defend them against unlawful attacks or atrocities at the hands of Serb or Russian armed forces, then he would not be guilty of these offences. The prosecution, members of the jury, agree with that. The issue, of course, is whether his purpose was something additional to, or different from, that - - something more akin to violent Jihad, as described in the videos; terrorism, rather than using reasonable force, to help those who have been subjected to unlawful assaults or atrocities. I am sure you understand the distinction very clearly now.”

We consider that the jury would have understood this passage to draw the distinction that the judge intended between defensive activities and terrorist activities. It would not have led them to believe that they could convict had they, improbably as it seems to us, concluded that the defendant might have been planning a single activity with a dual motive - part defensive and part ideological.

[48]For these reasons we hold that this ground of appeal is not made out. Accordingly the appeal against conviction must be dismissed.

The appeal against sentence

[49]When sentencing the appellant Fulford J first set out his conclusions, based on the evidence, about the appellant’s involvement in terrorism. This was that, financed by a Muslim group, he had for a substantial period been travelling the world furthering the cause of Muslim fundamentalism. His actions, in the period before his arrest, left the judge in no doubt that the terrorist purpose for which he possessed the substitution code was relatively imminent. The judge referred, with justification, to the substitution code as a “chilling document”.

[50]So far as the mortar notes were concerned, the jury’s verdict meant that they had concluded that he had in 2003 possessed them for a terrorist purpose connected with mortars. In explaining the basis upon which he had arrived at his sentence,

the judge said this:

“The maximum sentence for this offence is ten years. I want to make it abundantly clear that I consider the Government should give immediate and urgent consideration to the adequacy of that maximum term. Although in some instances a sentence of ten years or less would be sufficient for an offence of this sort, there will be cases where possession of objects for a terrorist purpose will have occurred in a context which makes the offence one of a high order of gravity, particularly where it is clear that a terrorist outrage was both planned and imminent, but where the available evidence makes it impossible to say exactly where or when. A ten year maximum sentence in those circumstances is, in my view, wholly inadequate, and a court should have the option of passing a discretionary life sentence. I only sentence you for the offences on which you have been convicted and not for any actual planned terrorist outrage. Notwithstanding that fact, if the maximum sentence for this offence had been longer, I would have no hesitation on the facts of this case in passing a sentence on each individual count and before considering the issue of totality well into double figures. Instead, I must bear in mind that the maximum sentence for each offence should be reserved for the very worst case and, serious though this case is, it is easy to conceive of situations that are even more grave. The mortar notes add a dimension to this case separate from, and in addition to, your general purposes, as revealed by the substitution code. The only sensible conclusion to be drawn from the jury’s verdict is that your terrorist purposes included, as I said, the use of a mortar. You had these mortar notes in your possession for a substantial period of time, far longer than the substitution code, and, in my judgment, it is appropriate in those circumstances to pass consecutive, rather than concurrent, sentences. By taking that approach, I do not for a moment depart from the approach that the Crown adopted of focusing on events in 2003.”

Mr Mansfield advanced the following grounds for submitting that the consecutive sentences of 7 ½ years on each count was excessive:

“a) The Judge had no proper legal or evidential basis for passing consecutive sentences;” b) The Judge failed to give the defence any advance notice of the factual findings that he had made (findings that were completely at odds with the prosecution case); c) The Judge failed to give the defence any warning of his intention to pass consecutive sentences; and d) The Judge failed to take any or sufficient account of the totality principle.”

He further submitted that the judge was wrong to deduce from the jury’s verdicts that the possession of the documents was not for humanitarian purposes.

[51]The last point was linked to Mr Mansfield’s submission that the judge’s directions on dual purpose were defective. We have rejected that submission. The judge was entitled, both from the verdicts of the jury and from the evidence that he had heard, to conclude that the appellant possessed the documents for the kind of terrorist activity that the nature of the documents themselves indicated that they were designed for.

[52]Mr Mansfield submitted that the judge should have warned him of his conclusion that the appellant’s foreign expeditions had been funded by a Muslim group so that he would have had the chance to make submissions in relation to this. Mr Mansfield had the chance to address this matter before us, but did not persuade us that the judge was wrong to reject the appellant’s explanation that he had funded his travels by drug dealing.

[53]The point that has caused us more concern has been Mr Mansfield’s submission that the judge erred in principle in awarding consecutive sentences and that the total sentence of 15 years was greater than was justified by the overall seriousness of the appellant’s conduct. This raises the question of the appropriate approach to this type of offence. Section 57 makes provision for a special type of inchoate offence in relation to terrorism. Under the Criminal Attempts Act 1981, which replaced the common law, attempting to commit an offence carries criminal liability where a person, with intent to commit an offence, does an act that is more than merely preparatory to the commission of the offence. Section 57, for good and obvious reason, makes criminal conduct that is merely preparatory to the commission of terrorist acts. While such conduct is highly culpable, it is not as culpable as attempting to commit, or actually committing, the terrorist acts in question. But the seriousness of the offence consists not merely in the culpability of the offender but the potential of his conduct to cause harm. Thus section 143 of the Criminal Justice Act 2003 provides that:

“In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused”

[54]Section 142 of that Act sets out the purposes of sentencing. These include both “the punishing of the offenders” and “the protection of the public”. In the case of an offence under section 57 the seriousness of the offence may justify a very long sentence indeed, providing both punishment and protection of the public.

[55]We believe that it is these considerations that the judge had in mind when he commented that “there will be cases where possession of objects for a terrorist purpose will have occurred in a context which makes the offence one of a high order of gravity…” We can understand his conclusion that a maximum of 10 years imprisonment for the offence was inadequate, as no doubt did Parliament when increasing that maximum to 15 years. He had, however, to impose a sentence that had proper regard to the statutory maximum.

[56]The judge concluded that the context in the present case was one which made the offence of possessing the substitution code one of high gravity. That context included the appellant’s past behaviour and the imminence of terrorist acts in preparation for which the code had been prepared. We consider that the judge’s conclusion was justified. There is no basis for criticising the sentence of 7 ½ years imprisonment imposed for possession of the substitution code.

[57]The judge considered that the mortar notes added a separate dimension to the appellant’s conduct. They demonstrated a separate intention to use a mortar for terrorist purposes. They had been in the defendant’s possession for a considerable period prior to 2003, the date when the substitution code was prepared. We agree with the judge that it was legitimate, in these circumstances, to impose a consecutive sentence in relation to the offence of possessing the mortar notes. Looking at the totality, however, we do not consider that this separate offence had the effect of doubling the appellant’s culpability or of doubling the potential consequences of his offending. An additional consecutive sentence of 7 ½ years for that offence was too high. We have concluded that the appropriate course is to quash the sentence on that count and to substitute a sentence of 2 ½ years imprisonment, to be served consecutively, making a total of 10 years imprisonment.