AY, R. v [2010] EWCA Crim 762

[2010] EWCA Crim 762Case No 201000534 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
MR JUSTICE MACKAY
T2008/7296
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/04/2010
Before
LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISIONMR JUSTICE MCCOMBEMRS JUSTICE SHARP DBE
Between
The QueenAppellantAYRespondent
Mr M Hill QC and Miss A Morgan (instructed by Crown Prosecution Service) for AppellantMr Henry Blaxland QC and Mr R Menon (instructed by Birnberg Peirce) for RespondentHearing Hearing dates : Tuesday 30 th March 2010
Judgment
[1]This has been an interlocutory appeal brought by the Crown under section 35 Criminal Procedure and Investigations Act 1996 against a ruling of law made by the trial judge at a preparatory hearing. The issue relates to the ambit of the defence of reasonable excuse provided by section 58(3) Terrorism Act 2000 to the offence of possessing a document or record containing information likely to be useful to a person committing or preparing an act of terrorism (s 58(1)).[2]The defendant faces re-trial on four such counts. The re-trial arises because the jury was unable to agree verdicts on these counts at the first trial. Since this will be a re-trial the issues are known more accurately than would normally be the case in advance of a first trial.[3]The ingredients of the offence are to be found in section 58(1). Subject to the defence of reasonable excuse they are:(a) the defendant is in possession of a document or record which is (objectively judged) likely to be of practical use to a person committing or preparing an act of terrorism, rather than of general use to any person,(b) he knows he has the document or record and(c) he knows the nature (but not necessarily every detail) of the information contained in it. Those propositions derive from R v G & J [2009] UKHL 13 especially at paragraphs 43-50. They were common ground before us.[4]In this case none of those ingredients was in issue at the first trial nor is it anticipated that any will be in issue at the second. The documents in his possession were(i) “The Mujahideen Terrorist Handbook”,(ii) “The Mujahideen Explosives Handbook”,(iii) a video of instructions on the making of a ball-bearing suicide vest and(iv) a video of instructions on the making of improvised explosive devices. Those are plainly objectively likely to be of practical assistance to a person committing or preparing an act of terrorism, and that is not disputed. Nor is it disputed that the defendant knew the nature of what he had got. It follows that it is common ground that he is guilty of the offences charged unless he can avail himself of the statutory defence of reasonable excuse provided by section 58(3). The terms of section 58(3) are simple and unparticularised:
“(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.”
By section 118 of the Act, if the defendant adduces evidence of this defence sufficient to raise the issue, it is to be treated as established unless disproved by the Crown beyond reasonable doubt.[5]The core facts relied on by the defendant for that statutory defence are also known from the first trial and there is no suggestion that they will be different at the re-trial. In a helpful skeleton argument Mr Blaxland QC set them out on his behalf for the trial judge. They are four in number: a) He downloaded the material when in Sweden where possession of it was not unlawful; b) He downloaded it en masse from internet websites without distinguishing between different files and documents; c) He downloaded it at a time when he believed on reasonable grounds that the Somali people, and in particular those associated with the Islamic Courts Union (‘ICU’) in Somalia had been the victims of the use of unlawful and disproportionate force and were in need of assistance by way of the use of armed force. He considered that the information which he downloaded from the internet could potentially be of use for the purpose of resisting the unlawful invasion and occupation; d) At the time of his arrest in the UK he no longer had any intention to put the information which he had collected to use. No doubt in his closing speech to the jury at the first trial Mr Blaxland either elaborated upon or broke down the suggested core elements of that defence a little further on the footing of the evidence which the defendant had actually given. According to a note taken by the Crown he added : e) The original downloading took place at a “hugely emotional time” in Somalia; f) The material was readily available on the internet; g) The material was unlikely to have been of any practical value; h) The volume of it showed that the exercise was indiscriminate; i) There was no evidence that the defendant actually sent any of the material to Somalia j) The military wing of the ICU, Al Shabaab, was not at any material time a proscribed organisation.[6]In advance of the re-trial the judge was invited by the Crown to rule that a part of that defence could not in law give rise to the defence of reasonable excuse, even if not disproved. The judge declined to do so. The Crown challenges that ruling by this appeal.[7]The part of the putative defence on which the Crown’s application focussed both before the judge and here has been element (c), namely that the defendant’s reason for possessing the documents was, at least in the past, that the information contained in them should be deployed by Somali muslims in self defence against opposing forces. It follows that the only issue formally before this court is whether suggested element (c), an alleged intended use for the lawful defence of others, or to assist them to employ lawful self defence, is or is not capable of amounting to reasonable excuse within s 58(3). We will return to some limited observations on some of the other suggested elements at the end of this judgment, but they were not part of the judge’s ruling and accordingly no decision upon them is open to us.[8]There was a large measure of agreement at the first trial on the state of affairs in Somalia. We summarise gratefully from the way the judge set it out in his ruling. The last Government of any duration fell in 1991. That is when the defendant left for Europe. Since then he had been back on visits in 2004 and 2006. The evidence was that since 1991 Somalia has been a failed State, torn by anarchy and fought over by warlords and different interest groups. A form of Government emerged in about 2004, called the TFG, but it has barely been in control of any part of the country beyond a portion of the capital, Mogadishu. The principal opposition in recent years has been the Islamic group known as the ICU, with its military wing Al Shabaab. This group seized brief control of much of the country in 2006 but a combination of the TFG and a large force of Ethiopian military, to which the TFG allied itself, forced the ICU into exile, where it has split into two wings which quarrel with each other.[9]The Defendant’s case is thus that he was a supporter of the ICU and that the information charged was collected and originally held by him with a view to supplying it to the ICU for use against the TFG and the invading Ethiopians. He would characterise that as use by what he would term ‘the resistance’ as defence against what he would term the unlawful force of invaders.[10]At the first trial the indictment contained not only the four counts which now remain but also two further counts. There was a charge against this defendant and a co-accused of dissemination of terrorist material via a web forum and a second charge against them both of fund raising for terrorism. Neither of those counts now remain. The judge ruled that there was no case for this defendant to answer on the fund raising charge. The jury acquitted both defendants of the dissemination charge and the co-accused of the fund raising charge. It follows, therefore, that at the first trial the judge had to direct the jury in relation to those two charges as well as the four which now remain. The issue of lawful self defence arose on those two charges also.[11]The judge gave the jury a carefully formulated written direction which had been the subject of no little discussion between Bench and Bar and which was agreed on all sides. It included a direction as to the general law of self defence. Then, in relation to the four charges under section 58 the jury was directed that it should approach the issue of reasonable excuse in this way. First it should consider whether the defendant’s explanation was or might be true. If yes, it should decide whether or not in its view it amounted to a reasonable excuse for possession of the documents. En route to that second decision, it should consider whether what the defendant contemplated as the use of the information contained in the documents was or might have been activity which was solely defensive. If the jury came to that conclusion, it was open to it to treat that as a reasonable excuse, although it was not bound to do so. It is to be observed that the judge did not direct the jury that if the contemplated use of the information in the documents was solely defensive, it followed necessarily that that amounted to a reasonable excuse. Whether it did so or not remained a question for the jury’s judgment. Thereafter the judge went on to remind the jury of the rival arguments about the contemplated use of the material, for example reminding them of the defendant’s case about events in Somalia and of the question whether a suicide vest had a defensive use.[12]However, in advance of the re-trial, the Crown, having reflected on the position, and because now only the four section 58 counts remained, invited the judge to rule that this direction had been wrong. It contended that there should not be left for the jury’s consideration the possibility that, if the defendant contemplated solely defensive use of the material, that was capable of amounting to a reasonable excuse within section 58(3). Although the indictment now contained only the four section 58 counts, the Crown’s application represented a change of position from that which it had adopted at the first trial.[13]Mr Blaxland’s written, although not his oral, submissions to us repeated the argument made to the judge that it was not open to the Crown thus to alter its stance. The judge held that it was. He remarked at paragraph 5 of his ruling:
“It may be an inelegant way to have proceeded but the fact is that if Mr Hill’s present application is right the first jury was misdirected as to a crucially important issue of law and that error should not be repeated in the re-trial. ”
We agree.[14]It is important to note what the Crown does not contend. It does not, at least in this case, contend that self defence can never be a relevant issue in a trial on terrorist charges. It accepted in the first trial that self defence arose, not only on the section 58 charges, but also on the two counts now no longer to be tried. Before us it has not been argued that an act of terrorism is committed even if the sole content of the act was reasonable self defence. An act of terrorism is defined in section 1 of the Terrorism Act 2000. It is not necessary to examine the details of the definition, but it includes the use or threat of serious violence to the person when done for the purpose of advancing a political religious or ideological cause and designed to influence a government or intimidate the public. When explosives or firearms are involved such behaviour is an act of terrorism whether or not designed to influence a government or intimidate the public. In R v Rowe [2007] EWCA Crim 635; [2007] QB 975 it was assumed by the parties, and also by the court, that if the sole content of an act was self defence that was lawful and not an act of terrorism (see paragraph 40). The point was not argued and may or may not be open for argument. The court in Rowe adverted to the possibility that it had been put in doubt by R v F [2007] EWCA Crim 243, but although that latter case contained potentially relevant observations on the illegitimacy of the use of force to serve one’s own or another’s perceived view of the public interest (see paragraphs 36 and 39), it was a case concerned with what was unarguably offensive purpose and not with a contention that there was a purpose confined solely to lawful defence. On the other hand, the debate in Rowe as to whether the trial judge’s summing up was or was not sufficient would have been unnecessary if the activity contemplated would have been an act of terrorism even if solely committed in reasonable self defence. Accordingly, since the point was not argued before us, we say nothing at all about whether the availability of self defence in the context of terrorist offences is arguable or not.[15]The Crown’s argument here is, however, that self defence cannot arise in a section 58 case. As developed before us by Mr Hill QC, the argument fell into two parts:(a) it was an error of principle to permit the purpose for which the defendant held the material to be relevant to the issue of reasonable excuse; purpose is relevant to the section 57 offence, but not to the section 58 offence; alternatively(b) a defendant cannot rely under section 58(3) upon any proposed deployment in combat or, as it was put, ‘in the field’, of the information contained in the material which is in his possession; the concept of reasonable excuse is limited to the circumstances in which he is in possession of the material and does not extend to active use in the field which he intends to make of the information contained in it. For convenience we will refer to these two arguments as the ‘purpose’ and the ‘deployment’ arguments.[16]Central to both arguments is an analysis of the difference between the offences created by sections 57 and 58. The relationship between these two sections has been scrupulously analysed by the House of Lords in R v G & J. Neither party here suggested any qualification of the analysis there undertaken, which is in any event binding upon us. We have no need accordingly to attempt to summarise or paraphrase it. But we accept that one essential difference between the two sections is that the ingredients of the section 57 offence involve some consideration of the purpose of the defendant, whilst the ingredients of the section 58 offence, absent consideration of reasonable excuse, do not. As Lord Rodger said in G & J at paragraph 58, “So, while section 57 focuses on the circumstances of the defendant’s possession of the article, section 58 focuses on the nature of the information which the defendant collects, records or possesses. Subject to the defence in section 58(3) the circumstances in which the defendant did these things are irrelevant. So, unless it amounts to a reasonable excuse under subsection (3), his purpose in doing them is irrelevant. In particular there is nothing in the terms of section 58(1) which requires the Crown to show that the defendant had a terrorist purpose for doing what he did.”[17]From this the Crown proceeds to argue that it cannot be the law that the purpose of the defendant, being absent from the ingredients of the section 58 offence as set out in section 58(1), can be re-introduced into that offence via the concept of reasonable excuse under section 58(3). We are unable to see that that follows. What section 58(3) does is to furnish a defendant with the opportunity to say that he had an explanation for possessing the material which he asks the jury to say was objectively a reasonable one. It necessarily focuses upon his reason for possessing the material. His reason for possessing it will in most if not all cases involve saying what he had it for, and thus what his purpose was in possessing it. If he says that he is a bona fide research student sponsored by Chatham House and intending to use the documents to write a thesis on insurgency and guerrilla warfare, he is giving evidence of his purpose in possessing the documents. If he is a bomb disposal expert who says that he is intending to look at various forms of improvised explosive devices in order to instruct soldiers or civilians in how to neutralise them, and has the documents for that reason, he is likewise giving evidence of his purpose in possessing them. Indeed even the hypothetical railway passenger, postulated in G & J at paragraph 81, who says that he found the documents on the train and, having read them and discovered their contents, was on his way to hand them in at a police station, is, as it seems to us, giving evidence of his purpose in having taken them into his possession.[18]That conclusion is supported by the reasoning of their Lordships in G & J. The words of paragraph 58, which we have quoted above at our paragraph 15, make this clear. We draw attention to the words:
“Subject to the defence in section 58, the circumstances in which the defendant did these things are irrelevant. So, unless it amounts to a reasonable excuse under subsection (3) his purpose in doing them is irrelevant.”
The emphasis is ours. But the underlined words demonstrate that the purpose may well be part of the excuse which the defendant advances and which he asks the jury to say is reasonable.[19]The Crown supported the purpose argument before us by a supplemental contention. It was said that if the defendant, or at least this defendant, is permitted to give evidence that his purpose was the solely defensive use of the information in the documents, that would have the effect of imposing on the Crown the obligation of proving that he had the purpose (ie intended) to enable the commission of an act of terrorism. That is not and cannot be the law, says Mr Hill, because section 58 has very clearly created an offence which does not depend on proof of any such purpose or intention. Rather it strikes at the logically prior stage of collection or possession of information which, objectively judged and thus independently of the defendant’s intention, might be of use to a terrorist, whether or not any act of terrorism is contemplated, or ever occurs.[20]Mr Hill rightly recognises that it cannot be said that this will always be the effect if a defendant gives evidence of what he asserts is a reasonable excuse for possession of such material. He must make that concession in the light of the analysis in G & J. As Lord Rodger said at paragraphs 67 and 68, what the Crown must do to destroy the defence of reasonable excuse is merely to disprove the explanation advanced; it does not have to go on to prove what the defendant’s reason for possessing the information was. Or, we would add, the Crown may destroy the defence by demonstrating to the satisfaction of the jury that even if the defendant’s explanation is true, it is not a reasonable excuse for possessing material of the kind in question. That is enough to dispose of the supplemental argument. But we do not agree that even in the present case the Crown will be put to the necessity to prove a terrorist intent on the part of the defendant if element (c) of his proposed defence is before the jury. It may of course choose to seek to do so – that will depend on the evidence in favour of such a suggestion at its disposal, and we do not know what that is. But it need not do so. It can perfectly properly counter element (c), if it wishes to do so, in other ways. There are, as it seems to us, a number of potential such ways, and those we mention are not necessarily exhaustive.(1) The Crown might demonstrate, if the evidence is available, that the proffered explanation of association with the ICU is simply untrue.(2) It might contend that the contemplated use asserted by the defendant is incapable of being solely defensive, because it amounts to use in support of one side in a civil war, and that whether that side is the “better” or more respectable side is irrelevant, because what a combat group in a civil war does is inevitably not simply defensive, but is a mixture of defensive and offensive operations, as is possibly illustrated by the inclusion in the information of the method for constructing improvised explosive devices and a suicide vest.(3) It might contend that even if the explanation is true and even if the intended use is solely defensive, it is nevertheless not reasonable to put such methods into further circulation, with the consequences which might follow for the population of any area where they are used.[21]Accordingly we reject the purpose argument as inconsistent with the nature of the concept of reasonable excuse. A defendant must be allowed to say what his purpose was in possessing the documents in order to submit for the jury’s consideration his assertion that that purpose was an objectively reasonable one. The only exception is where his purpose, and thus his excuse, is one which no jury could find reasonable, as for example the excuse offered by the defendant G in G & J (see below).[22]The deployment argument is a refinement of the purpose argument. Mr Hill contends that even if, contrary to his first purpose argument, the defendant’s purpose may sometimes enter into consideration of reasonable excuse, it can never be reasonable to possess information of the kind covered by section 58 with a view to deployment “in the field”. He adds that the present case involves information about firearms and explosives and is accordingly at the more serious end of the range of information which would be caught by the section. He reminds us that the use of firearms and explosives to occasion or threaten serious violence to the person is categorised as a terrorist act even if not aimed at influencing a government (see paragraph 14 above).[23]We do not doubt Mr Hill’s general proposition that the more alarming or dangerous the information in the document or record, the more difficult it is likely to be to advance a reasonable excuse for possession of it. But it does not follow that there can never be a reasonable excuse for its use. We are unable to see any basis in the statute for limiting the scope of the defence of reasonable excuse in this way. Nor would it be consistent with G & J to do so. Their Lordships were at pains to reject (at paragraph 81) the Crown submission in that case that the defence should be confined narrowly to cases such as possession with a view to handing over to the police or accidental possession. They said:
“So it is impossible to envisage everything that could amount to a reasonable excuse for doing what [section 58] prohibits. Ultimately, in this middle range of cases, whether or not the excuse is reasonable has to be determined in the light of the particular facts and circumstances of the individual case. Unless the judge is satisfied that no reasonable jury could regard the defendant’s excuse as reasonable, the judge must leave the matter for the jury to decide.”
[24]Nor can we see how the proposed deployment test could be practicable. The bomb disposal expert who proposes to use the information in instructing combatants, or indeed civilians, in counter-measures against the devices explained in the documents would, so it would appear, be deploying it in the field. We are unable to accept Mr Hill’s further submission that the statute can be read as permitting the advancement of an officially authorised use in the field, but not an unauthorised one. That would involve extensively re-writing the statute. The presence or absence of authority would certainly be of the greatest relevance if the jury were to be concerned with adjudicating upon the reasonableness of the possession of section 58 information by a soldier or policeman, but that is quite different from construing the statute as if it included limiting conditions for the defence which have plainly not been written into it. Accordingly we are satisfied that the refined purpose argument, namely the deployment argument, must similarly be rejected.[25]We accept the proposition, inherent in G & J, that a defence of reasonable excuse advanced under section 58(3) must be left to the jury unless it is quite plain that it is incapable of being held by any jury to be reasonable. That there are indeed cases where the defence could not be left to the jury is demonstrated by G & J itself, in the case of the defendant G, whose assertion that he wished to unnerve or ‘wind up’ prison officers was held to fall into this category. But the case must be a clear one. The concept of ‘reasonable excuse’ is par excellence a concept for decision by the jury on the individual facts of each case. Although to rule out a particular excuse would not amount to the forbidden process of directing a jury to convict (see R v Wang [2005] UKHL 9; [2005] 1 WLR 661), a judge must be cautious not so to rule unless satisfied that the proffered excuse is incapable in law of being held to be a reasonable one. He cannot substitute his own view of the prospects of a jury accepting the reasonableness of the explanation; he can only withdraw the defence if as a matter of law no jury could accept it. It is helpful in such circumstances to remember the way the point was put by Auld LJ in R v Nicholson [2006] EWCA Crim 1518 at paragraph 9:
“There is clear authority, as Mance LJ (as he then was) recently noted in Quayle [2006] 1 All ER 988 at 1000E-H, that if an issue is suggested based on proposed evidence that cannot possibly constitute any defence in law, a trial judge is entitled to rule that he will not leave that issue to the jury. If, however, on the facts advanced or to be advanced by the defence, a jury could find them to support an evidential issue raised by the defence, particularly one involving a value judgment such as that of reasonable excuse, then he should leave it to the jury. ”
[26]The reality is that element (c) of this defendant’s proposed defence can be removed from the consideration of the jury only if it is incapable of being held by the jury to be a reasonable excuse. Since the Crown accepts that self defence may be relevant in the case of an act which would be within the definition of an act of terrorism or in that of a terrorist offence, the proposed element of the defence could not be withdrawn only on the ground that it involved the proposition that the information might be used “in the field”.[27]We agree that it could turn out that the excuse offered is simply incapable of being one which is confined to solely defensive activity. It may very well be that in some cases the evidence shows no more than that a defendant is claiming to characterise as self defence something which is necessarily activity of mixed defensive and offensive behaviour. It may very well be that in some cases his characterisation of his purpose as defensive is, on inspection, no more than an assertion that the faction in civil strife which he supports is deserving of sympathy and support, but still is engaged in activity which must be thus mixed. Being on the ‘right’ side (even if that were not a matter of competing opinion) is not necessarily the same as acting solely in defence. Depending on the way the evidence emerges, it may be that the defence will not, in law, be available, or it may be that it will be necessary to direct the jury that it is not its function to adjudicate upon the rights and wrongs of international or internecine strife. But none of this was the basis on which the judge was asked to rule this defence out of court, and an interlocutory appeal where we do not have a full analysis of the evidence is not a procedure in which an appellate court should go beyond the point on which he did rule.[28]We make it clear that the judge was only asked to rule upon the legitimacy of element (c) of the defendant’s proposed defence. Since that was the limit of his ruling, we are in no position to go outside that element. Accordingly we are not making any ruling upon the various other elements listed in paragraph 5 above. We have not seen or heard the evidence, nor is it entirely clear whether or not it is accepted that the additional features (e) to (j) were advanced for the defence in quite the way remembered by the Crown. Most of them would appear to us to be (probably understandable) advocate’s colour given to the four core elements at (a) to (d). Feature (g) might on its face go well beyond that and be inconsistent with the acceptance that the material was of a kind objectively likely to be useful to a terrorist; we were, however, told that it was agreed by the defendant that the ingredients of the offence required by section 58(1), as explained in R v G & J, were all made out, so either it was not put quite as remembered or if repeated it would involve Mr Blaxland being asked to explain which stance was being adopted. Features (h) and (i) likewise look prima facie barely consistent with core element (c) and with acceptance that the defendant knew the nature of what he had got. Feature (j) was no doubt simply a reminder that the defendant was not to be convicted on a quite different basis, but appears otherwise irrelevant. Of the core elements, however, we observe that (d) may be important. Whilst the defendant is no doubt entitled for the reasons we have given to explain why and how he came into possession of the material, what is charged is possession on the date of his arrest. If indeed it is his case that by then he had some time previously abandoned any intention to put the material to the allegedly defensive use contended for, the issue for the jury will be whether he nevertheless had a reasonable excuse for continuing to possess it on that date. Such considerations as these, however, formed no part of the pre-evidence argument before the judge and must await the realities of the re-trial.[29]For the reasons given, we are satisfied that the judge was right, and that this appeal by the Crown, for which we give leave, must be dismissed.

Cited in 4 later judgments