K v R [2008] EWCA Crim 185

[2008] EWCA Crim 185Case No 200800344C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Stewart QC
Venue In the Crown Court at Leeds, Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/02/2008
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESTHE HONOURABLE MR JUSTICE OWENTHE HONOURABLE MR JUSTICE BEAN
Between
KAppellantRRespondent
Mr T. Moloney for AppellantMr J. G. J. Sharp for RespondentHearing Hearing dates: 5th and 6th February 2008
Judgment

LORD PHILLIPS CJ :

[1]The appellant, “K” is charged on an indictment containing three counts, each alleging an offence contrary to section 58 of the Terrorism Act 2000. On 4 January 2008 he appeared before HHJ Stewart QC at the Crown Court at Leeds where in the course of a preparatory hearing it was submitted on his behalf that the continued prosecution of the indictment against him amounted to an abuse of the process of the court. The learned judge rejected the submission, and on 15 January refused an application for leave to appeal his ruling. The appellant then sought the leave of this court to appeal against the ruling. The registrar referred the leave application to the full Court, and directed that it be listed for hearing with the appeal of Aitzaz Zafar and others. At the outset of the hearing we gave permission to appeal. Sections 58 and 118 of the Terrorism Act 2000 are, so far as is relevant, in the following terms – “58(1) A person commits an offence if – 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. 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 – may make an assumption in relation to a person charged with an offence unless a particular matter is proved, or 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 [include sections 57 and 58].” [include sections 57 and 58].”[2]Count 1 of the indictment alleges that on 17 July 2005 the appellant “possessed records containing information of a kind likely to be useful to a person committing or preparing an act of terrorism, namely a CD rom containing a copy of the Al Qaeda training manual”. Count 2 charges the appellant with possession of a copy of a publication called ‘Zaad-e-Mujahid’ on 9 May 2007, count 3 with possession of a copy of another publication, ‘The Absent Obligation’, on the same date. Each is alleged to ‘contain information likely to be useful to a person committing or preparing an act of terrorism’.[3]The title of the material the subject of the first count speaks for itself. Zaad-e-Mujahid is a text directed to the formation and organisation of Jihaad movements, to the training requirements for the armed wing of Jihaad movements and to the ‘Attributes and Qualities of Mujahideen’. The Absent Obligation is in simple terms a text which argues that a Muslim is under an obligation to work for the establishment of an Islamic State.[4]It was submitted before the judge that section 58 is insufficiently certain to comply with the common law or with Article 7 of the European Convention on Human Rights, secondly that section 58 was never intended to cover the possession of theological or propagandist material such as Zaad-e-Mujahid or The Absent Obligation. We have the benefit of a note of the learned judge’s ruling. He ruled in relation to the first submission that ‘likely to be useful to’ and ‘reasonable excuse’ are normal everyday terms, that a jury would be perfectly able to determine whether the material, the subject of the counts in the indictment, was material likely to be useful to a terrorist, and possessed by the appellant without reasonable excuse, and that accordingly the offence was sufficiently certain. As to the second submission, the note of his ruling is in the following terms – “Whether possession of the article crosses the line into illegality depends on the circumstances of the case and is all about the context in which it is found. That is a matter for a jury to decide in each case and not me. Here, the material, the prosecution submit is material capable of amounting to use for a terrorist without reasonable excuse. Whether a jury so find is a matter for them. Counts 2 and 3, the material may be innocent in itself…”[5]In his challenge to the ruling, Mr Moloney, who also appeared for the appellant before HHJ Stewart QC, again submitted that that section 58 was insufficiently certain, and that in any event it was never intended to criminalise the possession of theological or propagandist material.[6]As to the issue of certainty, he invited our attention to the speech of Lord Bingham of Cornhill in R v Rimmington [2006] 1 AC 459 in which the relevant principles were addressed at paragraphs 32 – 35. In essence Mr Moloney submitted that section 58 is insufficiently certain in its terms for a person to able to regulate his conduct, even with appropriate advice, so as to ensure that he does not fall foul of the criminal law. He argued that the term ‘likely to be of use to’ is so broad, so undefined in common law or statute, as to criminalise the possession of a myriad items of information. He sought to support his argument by reference to the factual background to the proceedings. The appellant was not initially charged in relation to the material the subject of counts 2 and 3, the additional charges were laid at the committal proceedings at the instigation of the Crown Prosecution Service. Mr Moloney submitted that it was clear from statements made by them in the interviews under caution that the officers from the anti-terrorist branch were uncertain as to whether possession of such publications could found a charge under section 58.[7]As to his second submission, namely that section 58 was never intended to embrace the possession of theological or propagandist material, Mr Moloney reminded us that the offences of collecting, recording or possessing information likely to be of use to terrorists have existed for some time in Northern Ireland; see section 21 of the Northern Ireland Prevention of Terrorism (Temporary Provisions) Act 1978 and latterly section 33 of the Northern Ireland (Emergency Provisions) Act 1996. He submitted that there has never been any suggestion that those provisions were designed to criminalise the possession of propaganda or theological material. He also argued that if they had been designed to have such an effect, it is inconceivable that Parliament would have thought it necessary to enact sections 1 and 2 of the Terrorism Act 2006, which creates offences relating to the dissemination of terrorist publications.[8]We explored with Mr Jonathan Sharp, who appeared both before the judge and us on behalf of the Crown, what the Crown’s case was(i) as to the ambit of the phrase “of a kind likely to be useful to a person committing or preparing an act of terrorism” and(ii) as to the criteria for determining whether the possessor has “a reasonable excuse for his…possession”. Regrettably it seemed to us that he was considering these questions for the first time, so that he was not in a position to give us a considered response.[9]As to the first question, we asked whether(i) the information had on its face to be the kind of information that would raise a reasonable suspicion that it might be intended to be used for the commission or preparation of an act of terrorism or alternatively(ii) whether it was open to the prosecution to rely on extrinsic evidence to show that the information was intended to be used for the commission of an act of terrorism. Mr Sharp replied that the latter was the Crown’s case. Thus an A to Z of London would fall within the scope of the section if the person possessing it intended to provide it to a terrorist so that he could find his way to the place where a planned act of terrorism was to take place. It seems likely that the judge accepted such a submission when he held that whether possession of the article crossed the line into illegality depended on the circumstances of the case and the context in which it was found.[10]As to the question of what constituted a reasonable excuse, Mr Sharp submitted that this meant a purpose for possessing the information that was lawful. We asked Mr Sharp whether this meant that a defendant could properly be convicted under section 58 if he explained that he possessed information as to how to make explosives for the purpose of committing a bank robbery. Mr Sharp had no ready answer to that question.[11]We had a further question for Mr Sharp that it seemed to us was raised by the facts of this case. Was it the Crown’s case that a document that exhorted the reader to commit acts of terrorism fell within the definition of “a document…containing information of a kind likely to be useful to a person committing or preparing an act of terrorism”? Mr Sharp replied that it was.[12]We do not accept Mr Sharp’s submissions as to the scope of section 58. It is helpful to consider them in the light of the provisions of the first part of section 2 of the Terrorism Act 2006. This provides:
“2(1) A person commits an offence if he engages in conduct falling within subsection (2) and, at the time he does so- (a) he intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; (b) he intends an effect of his conduct to be the provision of assistance in the commission or preparation of such acts; or (c) he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b). (2) For the purposes of this section a person engages in conduct falling within this subsection if he- (a) distributes or circulates a terrorist publication; (b) gives, sells or lends such a publication; (c) offers such a publication for sale or loan; (d) provides a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of a gift, sale or loan; (e) transmits the contents of such a publication electronically; or (f) has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e). (3) For the purposes of this section a publication is a terrorist publication, in relation to conduct falling within subsection (2), if matter contained in it is likely- (a) to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism; or (b) to be useful in the commission or preparation of such acts and to be understood, by some or all of those persons, as contained in the publication, or made available to them, wholly or mainly for the purpose of being so useful to them. … 5. For the purposes of this section the question whether a publication is a terrorist publication in relation to particular conduct must be determined – (a) as at the time of that conduct; and (b) having regard to both the contents of the publication as a whole and to the circumstances I which that conduct occurs.”
[13]We draw attention to the contrast between subsection (3)(a) and subsection 3(b). On Mr Sharp’s submission section 58 of the 2000 Act covers documents described in either 3(a) or 3(b). We consider that it is plain from the language of section 58 that it covers only documents that fall within the description in 3(b). A document or record will only fall within section 58 if it is of a kind that is likely to provide practical assistance to a person committing or preparing an act of terrorism. A document that simply encourages the commission of acts of terrorism does not fall with section 58.[14]The provisions of section 2 of the 2006 Act, and in particular those of section 2(5), require the jury to have regard to surrounding circumstances when deciding whether a publication is likely to be useful in the commission or preparation of acts of terrorism. Contrary to Mr Sharp’s submission, we do not consider that the same is true of section 58 of the 2000 Act. The natural meaning of that section requires that a document or record that infringes it must contain information of such a nature as to raise a reasonable suspicion that it is intended to be used to assist in the preparation or commission of an act of terrorism. It must be information that calls for an explanation. Thus the section places on the person possessing it the obligation to provide a reasonable excuse. Extrinsic evidence may be adduced to explain the nature of the information. Thus had the defendant in R v Rowe [2007] EWCA Crim. been charged under section 58, evidence could have been admitted as to the nature of the substitution code possessed by the defendant. What is not legitimate under section 58 is to seek to demonstrate, by reference to extrinsic evidence, that a document, innocuous on its face, is intended to be used for the purpose of committing or preparing a terrorist act.[15]As for the nature of a ‘reasonable excuse’, it seems to us that this is simply an explanation that the document or record is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism. It matters not that that other purpose may infringe some other provision of the criminal or civil law.[16]If section 58 is interpreted in accordance with this judgment, its effect will not be so uncertain as to offend against the doctrine of legality. It follows that this prosecution does not involve an abuse of process on that ground. Mr Moloney has also submitted that the proceedings should be stayed on the ground of abuse of process because the documents to which the counts relate are propaganda and section 58 was never intended to cover propaganda. This is not an appropriate ground on which to seek a stay for abuse of process. The nature of at least some of the information that forms the subject matter of the three counts is in issue. It may be that, in the light of this judgment, one or more of the documents to which the counts relate is not in law capable of falling within the section. Should the appellant contend that this is the case, it may be appropriate for that issue to be resolved before a jury is empanelled.[17]For the reason that we have given, this appeal is dismissed.

Cited in 8 later judgments