R v Zaheed Hossen [2026] EWCA Crim 1065

[2026] EWCA Crim 1065Case No 202403205 B5202500097 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON
His Honour Judge Lodder KC [T202300027]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/08/2026
B e f o r e:
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(Lord Justice Edis)
MR JUSTICE CHOUDHURY
MS JUSTICE NORTON DBE
Between
R E XRespondentZAHEED HOSSENAppellant
Jon Anders appeared for AppellantSerena Gates appeared for CrownHearing Hearing date: Friday 19 June 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 7 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
[1]The appellant was charged on an Indictment containing 5 counts of Dissemination of a Terrorist Publication, contrary to section 2(1) of the Terrorism Act 2006.[2]Following a trial at the Crown Court at Kingston (HHJ Lodder KC) the appellant was convicted of all 5 counts and on 10th December 2024, was sentenced to a total of 7 years imprisonment, comprising 6 years imprisonment on each count to run concurrently, with an extension period of one year imposed by virtue of section 278 Sentencing Act 2020.[3]The appellant now appeals against his conviction and sentence with leave of the full court.

The Facts

[4]On 8 August 2020, the appellant, Zaheed Hossen, and his wife, Ms Amina Ahmed, were stopped by police at London Stanstead airport on their way to Turkey. The police took possession of the appellant’s mobile telephone before allowing him and his wife to catch their flight. On examination of the telephone, police identified a number of documents related to Islamic extremism, including messages supportive of the terrorist group, Islamic State. Mr Hossen was arrested on his return to the UK on 17 August 2020. At that time the police also seized his laptop computer.[5]Following analysis of his phone, the appellant was charged with five offences of Disseminating a Terrorist Publication, between February and May 2019, to four different individuals including, on two occasions, Amina Ahmed, who subsequently became his wife.[6]The publications subject of the charges were: (a) ‘Mashari Al-Aswaqi La Masari Al-Ushaaq Imam ibn-Nuhass’; also known and referred to as ‘The Book of Jihad’; and (b). A document called ‘44 Ways to Support Jihad’. There is no dispute that both of these documents were terrorist publications.[7]Neither was it disputed that the appellant had disseminated these publications as particularised in the individual counts as follows: Count 1 – On 25 February 2019, the appellant sent ‘The Book of Jihad’ to Ms Ahmed on What’s App; Count 2 – On 9 April 2019, the appellant sent ‘44 Ways to Support Jihad’ to Ms Ahmed on the social media application, Telegram Count 3 – On 8 March 2019, the appellant sent ‘The Book of Jihad’ to KW on WhatsApp Count 4 – On 3 April 2019, the appellant sent ‘The Book of Jihad’ to SS via WhatsApp Count 5 – On 21 May 2019, the appellant sent 44 Ways to R via WhatsApp.

The respective cases

[8]It was the prosecution case at trial, that when the appellant disseminated these publications, he did so intending, whether directly or indirectly, to encourage acts of terrorism; alternatively, that he was reckless as to whether his acts of dissemination would have that effect. To prove his intention, the prosecution adduced evidence of documents, images and videos recovered from the appellant’s devices which, they contended, demonstrated that he had an extremist mindset. This ‘mindset material’ included Islamic State propaganda, pro-ISIS videos of beheadings and other images supportive of Islamic State, and publications and lectures that encouraged the killing of unbelievers as a fundamental tenet of Islam. The prosecution further relied upon messages sent by the appellant to the recipients of the publications; in particular, exchanges with his future wife by which, the prosecution asserted, the appellant sought to groom her to adopt an extremist mindset that aligned with his own.[9]The appellant denied that he had an extremist ideology or that he endorsed the contents of the publications. He accepted at trial that the publications were terrorist publications as defined in the Terrorism Act but maintained that he had not been aware of this at the time that he sent them to his future wife and others as particularised in the individual counts; neither did he endorse their contents. It was his case that he had disseminated the publications simply for discussion, not to encourage others to adopt extremist views. In so far as the ‘mindset material’ was concerned, he denied that he was aware of all the material that was found on his laptop and phone and relied on unchallenged expert evidence to the effect that some of the material could have been downloaded automatically and without his knowledge; any material he had collected and looked at was to gain a balanced view of Islam, and what was being done in its name. The appellant disputed that he held or supported an extremist ideology, neither had he sought to groom his wife into adopting a fundamentalist or extremist mindset; rather, he contended that the messages displayed no more than a free exchange of views about Islam and related topics. Moreover, the message exchanges relied upon by the prosecution formed only a very small proportion of messages comprising a total of 50 pages out of 60,000. In support of his defence, he relied upon a number of witnesses including two of the recipients of the publications, who gave evidence that the publications did not reflect their understanding of the appellant’s beliefs, and rejected any suggestion that the appellant held extremist views.[10]The principal issue at trial therefore was whether the appellant’s intention in disseminating terrorist publications was to encourage or assist acts of terrorism (directly or indirectly) or to promote discussion about Islam.

The Legal Directions

[11]In summing up, the judge directed the jury that the defendant would be guilty of an offence if they were sure that, at the relevant time, he intended to, or was reckless as to whether an effect of his conduct would be to, encourage the commission, preparation or instigation of acts of terrorism. As to recklessness, the judge directed the jury that- “A person acts recklessly if they foresee the risk of something happening, but nonetheless go on to take that risk; and in the circumstances known to them taking that risk is unreasonable.”[12]The judge also provided the jury with a ‘route to verdict’ which set out the single question for them to answer as follows: “In respect of each count…are you sure that he intended to directly or indirectly encourage acts of terrorism or was reckless as to whether they would have that effect?’’[13]No issue was, or is taken either with the legal directions, or with the single question posed in the route to verdict, which were agreed.

The Jury Note

[14]The jury retired to consider their verdict on 7 August 2024. Later the same day the jury sent a note posing a number of hypothetical scenarios and asking whether, in any such scenarios, the appellant would be guilty. The note read as follows:
“Could we have some further guidance on how to interpret the charges. Regarding ‘reckless’ and ‘indirect’, if the defendant saw a reasonable risk of any of the following, would that meet the charge? - the recipient develops a mindset supportive of terrorism - the recipient encourages others to the commission, preparation, or instigation of terrorism - the recipient further disseminates the terrorist publication recklessly - the recipient supports terrorism by donating money to terrorist groups.”
In the course of discussions following receipt of this note the defence, for the first time, submitted that when considering recklessness, the defendant was entitled to rely on the statutory defence to an allegation of recklessness found in section 2(9) and (10) of the Terrorism Act 2006 [see [19] below], and that the jury should be directed accordingly. Having heard submissions, the judge declined to leave the defence to the jury ruling that the availability of the defence was limited to a specific class of persons who disseminated terrorist publications for legitimate purposes in their capacity as, for example, an academic or journalist, and that there was no evidential basis upon which the defendant could bring himself within that class. The jury in due course convicted the appellant on all counts.

The submissions on appeal

[15]On behalf of the appellant, Mr Anders, submits that the judge was wrong to withhold the section 2(9) defence; there is nothing in either the wording of the statute nor in the explanatory notes that purports to restrict the availability of the defence to a particular category of person. He argues before us, as he did in the court below, that the jury note indicated that they had, or may have, rejected the prosecution’s case on intention, and had moved on to consider the issue of recklessness. The appellant had consistently stated that the publications did not express his views, neither did he endorse their contents. He accepted that he had disseminated terrorist publications, but this was merely for the purpose of discussion with his future wife and a small number of friends who knew that he did not hold extremist ideology. Having adduced evidence to this effect, the jury should have been directed that he had a statutory defence to recklessness.[16]On behalf of the Respondent, Ms Gates accepts that there is nothing in the wording of section 2 that restricts the availability of the defence; however, she draws our attention to the comparable and similarly worded defence to the section 1 offence of encouragement of terrorism as set out in section 1(6) of the Act, and in respect of which paragraph 27 of the explanatory notes states that the defence is “intended, for example, to cover news broadcasters”. In addition, Ms Gates has provided a detailed and careful analysis of Parliamentary material to illustrate the concerns raised in the course of the Bill’s passage through Parliament, about the potential for journalists, librarians or academics to inadvertently commit a section 2 offence, and the consequential requirement for a defence to protect their legitimate activities.[17]Furthermore, Ms Gates argues that there was no sufficient basis upon which to leave the defence to the jury in this case. It was insufficient for the appellant to state that the publications neither represented his views nor had his endorsement, there also needed to be a sufficient evidential basis for the second limb (in 2(9)(b) at [19] below), which was an objective test. There was no such evidence before the jury.[18]Both parties were agreed that, if the defence was available, there was an evidential burden on the defence in respect of both limbs.

The Law

[19]In so far as is relevant, section 2(1) of the Terrorism Act 2006 provides as follows: 2 Dissemination of terrorist publications(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 a reasonable person as a direct or indirect encouragement or other inducement, to some or all of the persons to whom it is or may become available as a result of that conduct, 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.(4) For the purposes of this section matter that is likely to be understood by a reasonable person as indirectly encouraging the commission or preparation of acts of terrorism includes any matter which– (a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts; and (b) is matter from which a person could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by him in existing circumstances.(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 both to the contents of the publication as a whole and to the circumstances in which that conduct occurs.(6) In subsection (1) references to the effect of a person's conduct in relation to a terrorist publication include references to an effect of the publication on one or more persons to whom it is or may become available as a consequence of that conduct.(7) It is irrelevant for the purposes of this section whether anything mentioned in subsections (1) to (4) is in relation to the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally.(8) For the purposes of this section it is also irrelevant, in relation to matter contained in any article whether any person– (a) is in fact encouraged or induced by that matter to commit, prepare or instigate acts of terrorism; or (b) in fact makes use of it in the commission or preparation of such acts.(9) In proceedings for an offence under this section against a person in respect of conduct to which subsection (10) applies, it is a defence for him to show– (a) that the matter by reference to which the publication in question was a terrorist publication neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and (b) that it was clear, in all the circumstances of the conduct, that that matter did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under subsection (3) of that section) did not have his endorsement.(10) This subsection applies to the conduct of a person to the extent that– (a) the publication to which his conduct related contained matter by reference to which it was a terrorist publication by virtue of subsection (3)(a); and (b) that person is not proved to have engaged in that conduct with the intention specified in subsection (1)(a).(11) A person guilty of an offence under this section shall be liable– (a) on conviction on indictment, to imprisonment for a term not exceeding 15 years or to a fine, or to both; (b) ….. (c) ….. (12)….. (13) In this section– “lend” includes let on hire, and “loan” is to be construed accordingly; “publication” means an article or record of any description that contains any of the following, or any combination of them– (a) matter to be read; (b) matter to be listened to; (c) matter to be looked at or watched.[20]It is clear from subsections 1 and 2, that a person may be guilty of an offence under section 2 of the Terrorism Act if they carry out any of the conduct specified in subsection 2, either with the intention specified in subsection 1(a) or (b) – that is intending that an effect of the conduct should be to encourage, induce or assist the commission, preparation, or instigation of acts of terrorism – or under subsection 1(c), being reckless as to whether his conduct has such an effect.[21]Subsections (9) and (10), read together, provide a defence where it is shown that the relevant publication neither expressed the view nor had the endorsement of the person whose conduct is in issue, and it is clear in all the circumstances of the conduct that the publication did not express the person’s view nor had his endorsement. The effect of subsection (10)(b) is that the defence only applies where the allegation is one of recklessness, not intent.

Availability of the defence

[22]As we have already observed, there is nothing in the language of the section, or in the Explanatory Notes that limits the availability of the section 2(9) defence. This may be contrasted with the very similarly worded defence to an offence of Encouragement of Terrorism set out in section 1 of the Act.[23]In so far as is material, that reads as follows: “1 Encouragement of terrorism(1) This section applies to a statement that is likely to be understood by a reasonable person as a direct or indirect encouragement or other inducement, to some or all of the members of the public to whom it is published, to the commission, preparation or instigation of acts of terrorism or Convention offences.(2) A person commits an offence if– (a) he publishes a statement to which this section applies or causes another to publish such a statement; and (b) at the time he publishes it or causes it to be published, he– (i) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or Convention offences; or (ii) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offences.(3) ….(4) ….(5) ….(6) In proceedings for an offence under this section against a person in whose case it is not proved that he intended the statement directly or indirectly to encourage or otherwise induce the commission, preparation or instigation of acts of terrorism or Convention offences, it is a defence for him to show– (a) that the statement neither expressed his views nor had his endorsement…; and (b) that it was clear, in all the circumstances of the statement's publication, that it did not express his views and… did not have his endorsement.[24]It can readily be seen that the wording of the defence provided in s2(9) and (10) closely mirrors that set out in s 1(6) above.[25]In respect of the defence in s 1(6), note 27 of paragraph 1 of the Explanatory Notes, reads that:
“Subsection (6) sets out a defence to the offence created by this section. It is a defence for a person accused of the offence, where it has not been proved that he intended the statement to encourage or otherwise induce the commission, preparation, or instigation of acts of terrorism or Convention offences, to show that the statement published neither expressed his views, nor had his endorsement and that it was clear in all the circumstances of the statement's publication that it was not his view and did not have his endorsement. The defence is intended, for example, to cover news broadcasters…..”

There is no comparable note in respect of s2(9)

[26]That it was intended that the defence in s2(9) should be similarly directed is, Ms Gates submits, made clear by an analysis of the Parliamentary material; we are grateful to her for her helpful researches in this regard which track the debate around concerns that absent statutory protection afforded by a specific defence, academics, librarians, booksellers and the media might inadvertently commit an offence in the pursuit of their legitimate activities. In an Appendix letter to the Government’s written response to the Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Terrorism Bill and Related Matters (Third Report of Session 2005-06, HL 75-I, HC 561-I) dated 1 February 2006, the Government rejected a suggestion by the Committee that there should be a “reasonable excuse” or “public interest” defence, to protect the “legitimate activities of the media and academics”, stating that:
“The defence in clause 2(9) as amended, will be available to those who can show that a publication did not express his views and did not have his endorsement, and that it was clear in all the circumstances that this was the case…..It is the Government’s view that the remaining defence with the intent and recklessness tests are appropriate. They ensure legitimate librarians, academics, teachers and others are protected, but they will still allow the offence to operate effectively.”
In our judgment, the intended beneficiary of the statutory defence, whether that set out in s1(6) or s2(9) is the same: namely the person who, without intending any of the consequences set out in the relevant sections, does an act as set out in section 1 (publishes) or 2 (distributes, gives, offers, etc). Whether a defendant charged with a section 2 offence can bring themselves within s2(9) will be fact specific. Most often, no doubt, such persons will be acting as a journalist, librarian or teacher, but there is nothing in the statutory words to limit the availability of the defence to such people and the Explanatory Notes have only a limited relevance to an exercise of statutory construction. Letters of explanation to committees are even less admissible as aids to construction. Moreover, if such terms had been used to limit the class of persons entitled to the statutory defence, this would have led to arid and ultimately inconsequential arguments about whether a particular person was a “journalist” or a “teacher” and so on. The Parliamentary material to which we were referred, demonstrates that the government were concerned to ensure that those who have good cause to disseminate terrorist material for reasons of their profession, such as journalists, academics and similar professions should be protected, and such a person is likely to have little difficulty in satisfying the twin limbs of the defence; but there is no attempt to limit the availability of the defence to such persons and we consider that it would be wrong to read a limitation into the Act where none has been set out.[27]Where intention has not been proved, then in our judgment, if a defendant can satisfy the twin limbs of the defence (as to which, see further below) the defence is available to him, irrespective of his personal status.

Limb 2 – an objective test

[28]As is clear, section 2(9) has two limbs, both of which must be satisfied: a) Under section 2(9)(a), the defendant must show that the terrorist publication neither expressed his views nor had his endorsement. b) Under section 2(9), he must show ‘that it was clear, in all the circumstances of the conduct [the dissemination as set out in section 2(2)] that that matter did not express his views and did not have his endorsement.’[29]In submissions, both at trial and before us, Mr Anders relied on the evidence given by the appellant that the publications did not reflect his views and that he did not endorse them. In written submissions, Mr Anders put it in this way:
“In the event that this defendant fell to be convicted on the basis of recklessness under s2(1)(c), a natural reading of section 2 would lead to the sensible conclusion that a defendant in Mr Hossen’s position did have a defence under subsection (9). He had given evidence about the issues raised by the subsection (an absence of agreement with the content and no endorsement of it) and there was no direct evidence to gainsay on the evidence, had they been properly directed about the existence of the defence.”
Evidence from the defendant about his views may, depending on other evidence, satisfy the jury in respect of limb (a), but something more will be required to satisfy limb (b). Nothing in Mr Anders’ submissions addresses what evidence would or could have been relied upon to satisfy limb (b).[30]Limb (b) is a separate and distinct requirement to limb (a). Furthermore, in our judgment the wording of limb (b) “…clear in all the circumstances…” must mean objectively clear. An assertion that the publication does not express the defendant’s views or have his endorsement will, in many cases, be insufficient to satisfy this limb. What will be sufficient will be fact specific and a matter for the jury to evaluate. In circumstances in which the defendant is a librarian, teacher, journalist or similar, and can show that the publication was disseminated in the course of and for the purposes of carrying out their role, then, (provided they can also show that the publication did not express their views or have their endorsement), the twin limbs of the defence may be satisfied.

Burden and standard of proof

[31]In written and oral argument, both parties agreed that there was an evidential burden on the defendant in respect of both limbs. Whilst not necessary for us to conclusively decide whether this is right or wrong for the purposes of deciding this appeal, we consider that there is in fact a legal or persuasive burden. We reach this conclusion for the following reasons.[32]Firstly, in our judgment the wording of section 2(9) – “…it is a defence for him to show…” clearly places a legal burden on the defence in respect of both limbs.[33]The construction of these words, “to show” was considered in Roger Sliney v London Borough of Havering [2002] EWCA Crim 2558. The appellant in that case was charged with offences contrary to section 92 of the Trade Marks Act 1994. Section 92(5) of that Act provides that: (5) It is a defence for a person charged with an offence under this section to show that he believed on reasonable grounds that the use of the sign in the manner in which it was used, or was to be used, was not an infringement of the registered trademark. The issue on appeal was whether the words “to show” imposed a persuasive or an evidential burden on the accused. Giving judgment, Rose LJ stated: “17. In our judgment, having regard to the authorities and, indeed, to general principle, as a matter of English law it is open to Parliament to provide that, in criminal proceedings in a given context, a legal (persuasive) burden be imposed upon an accused; but, if that is to be so, that is to be regarded as an exceptional course and sufficiently clear language is required. Ultimately, however, all depends on the interpretation of the particular statutory provision in question. 18. We are of the view that, as a matter of construction, applying English legal principles, s.92 (5) does impose a legal (persuasive) burden on the accused. 19. The first, and obvious, point is that section 92 (5) commences with the words: “It is a defence for a person charged with an offence under this section to show." That is, moreover, to be contrasted with the immediately preceding sub−section (4) which provides that unless the stipulations there set out are fulfilled a person does not commit an offence. The language used in s.92 (5) is classic language for imposing a legal (persuasive) burden on an accused. The drafting technique adopted is well established and the approach was recognised in, for example, s101 of the Magistrates Court Act 1980. As stated by Lord Hope of Craighead in Lambert at paragraph 35 (p233 D−E): “In a case of a provision such as that found in section 5 (4) where the words are "it shall be a defence for him to prove", the answer to it is plain on the face of the enactment. A provision which takes this form is understood to be an express statutory exception to the golden thread rule". Lord Hutton was equally explicit: see at paragraph 182 (p262). Mr Tetlow, counsel appearing for the appellant, submitted that that was not the view of Lord Clyde. It is true that in the course of his speech (see paragraphs131 and 137) Lord Clyde said that he would be slow to construe a criminal provision so as to impose a persuasive burden upon an accused. But he immediately went on to say (in paragraph 132:p250D) that, having regard to what is generally recognised as the proper construction in England, the words "it shall be a defence for the accused to prove" imply in the ordinary meaning a persuasive burden of proof. In our judgment, the wording of s.92(5) was designed to impose a legal (persuasive) burden on the accused. 20. Mr Tetlow, however, placed emphasis on the fact that the verb used in s.92 (5) is "show", not "prove". He submitted that that is significant. He submitted that, by using such word, Parliament was intending that the burden on the accused should be evidential only. We do not accept that submission. In our view, in the context in which they are here found, the words "show that" are to be taken as synonymous with the words "prove that". The word "show" can readily be so understood (see the definition in the Shorter Oxford Legal Dictionary); and in legal circles commonly is so understood. Mr Swift QC (who, with Mr Ham, appeared for the respondents) pointed to a number of provisions in consumer protection statutes where the word "show" is plainly used in a sense interchangeable with the word "prove": see, for example, sections 10, 24 and 39 of the Consumer Protection Act 1987; section 2 of the Property Misdescriptions Act 1991. We would accept that, if there were ambiguity here, the Court should incline to construe the words so as to impose an evidential, rather than legal, burden on the accused. But in our view there is no such ambiguity: nothing in Johnstone compels us to any different view; and the words of s.92 (5) are to be taken, as a matter of ordinary construction, as imposing a legal (persuasive) burden on the accused.” “In a case of a provision such as that found in section 5 (4) where the words are "it shall be a defence for him to prove", the answer to it is plain on the face of the enactment. A provision which takes this form is understood to be an express statutory exception to the golden thread rule". 34. For the same reasons as given in Sliney, we agree that ‘to show’ should be construed as ‘to prove’and imposes a legal burden on the defendant. 35. Secondly, we consider that there is no unfairness or incompatibility with Art6(2) of the ECHR in imposing a legal burden on the defendant to prove the defence for the following reasons:(i) It is for the prosecution to prove each element of the offence. The defence will only apply where the prosecution have proved that the defendant ‘s conduct amounts to the reckless commission of the offence, and the defendant will be convicted unless the defendant can bring himself within the exemption provided for by the s2(9) defence;(ii) There is a strong public interest in ensuring that those who disseminate terrorist publications being reckless as to effect of their conduct to be a direct or indirect encouragement, inducement or assistance to the preparation or instigation of acts of terrorism, should be held accountable. Requiring the defendant to prove that a terrorist publication which he disseminated, did not express his views and did not have his endorsement, and that it was clear in all the circumstances that this was the case, is not a disproportionate infringement of the defendant’s Article 6(2) rights that the case be proved against him. As was stated in Salabiaku v France [1988] 13 EHRR 379: “Presumptions of fact or law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law… The object and purpose of Article 6 which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to exercise the fundamental principle of the rule of law… Article 6 (2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to define them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.”(iii) As to the first limb of the defence, the matters to be proved by the defendant are matters that will be within the defendant’s own knowledge. In so far as the second limb is concerned, this will be a matter for the jury to determine whether it is objectively clear, in all the circumstances of the conduct, that that matter did not express his views or have his endorsement. As explained by Ms Gates, Parliament’s intention in drafting the defence was to protect those who disseminated terrorist publications for objectively legitimate purposes. Whilst we have found that the availability of the defence is not restricted to specific categories of person defined by their occupations, we do not consider it to be an onerous burden on a defendant to show that in all the circumstances it was clear that the terrorist publication did not express his views or have his endorsement. Indeed, we would envisage that this would be relatively straightforward for those whom this defence is designed to protect.

Conclusions on statutory construction

[36]In accordance with our analysis above, we find that: a) The section 2(9) defence is not restricted to a particular category or class of persons; b) Both limbs of the defence must be satisfied; the second limb of the defence imports an objective test; c) The burden of proof on both limbs of the defence rests on the defendant. This is a legal (persuasive) burden to be discharged on the balance of probabilities (more likely than not).

Application to this case

[37]It was the prosecution’s primary case, relying on the ‘mindset’ material and exchange of messages, that the appellant intended to encourage the commission, preparation or instigation of acts of terrorism; however, the prosecution did not restrict their case in this way. Mr Anders told us that the appellant’s defence at trial was that he neither intended, nor was he reckless as to the effect of his conduct. The trial judge directed the jury on recklessness. It is difficult to understand why, if recklessness was to be left to the jury as a possible route to conviction, Mr Anders did not raise the applicability of the section 2(9) defence at an earlier stage, and certainly before summing up. Mr Anders told us that he did not do so because to have canvassed the defence would have been ‘confusing’, and that the judge would have had to construct legal directions and a route to verdict that would have explained that the defence was only available for consideration if the prosecution failed to prove that the defendant intended to encourage. Mr Anders’ concern, as expressed to us, was that had the defence been left to them at the outset, it might have been assumed that the defendant was conceding that he had been reckless. We find this a little difficult to follow. We consider that, had anyone considered that the section 2(9) defence was, or may have been applicable, it would not have been unduly complicated to construct a route to verdict directing the jury to consider intention first and then, if they were not satisfied that intention had been proved, to consider recklessness and the statutory defence to it.[38]Irrespective of the explanation for it the fact is that in this case, as Mr Anders conceded, the possibility of reliance on the statutory defence was never raised at any stage prior to the retirement of the jury. It was not foreshadowed in the defence statement, and was not raised with the judge prior to summing up. It formed no part of the submissions to the jury by either counsel. Indeed, as we have observed, the legal directions (which make no mention of the statutory defence) and the route to verdict were all agreed.[39]Whether or not the appellant’s evidence (if accepted) that the publications did not express his views or have his endorsement, might have satisfied limb (a), Mr Anders has been unable to direct us to the evidence that would have satisfied the objective test in limb (b). Put simply, no or no sufficient evidence had been adduced that would have justified leaving the defence to the jury.[40]Accordingly, we agree, albeit for different reasons to those given by the judge, that he was right to refuse to direct the jury about the statutory defence at the point when the question arose. In any event, we conclude that there was no evidence on which the jury could reasonably have concluded that the defence was made out. The appellant’s convictions are not arguably unsafe, and the appeal against conviction is accordingly refused.

Appeal against Sentence

[41]The appeal against sentence is again predicated on the substance of the jury note. Although Mr Anders readily accepts that the basis for the jury’s guilty verdicts is unknown, he submits that the terms of the note are “perhaps indicative of their rejection, or contemplated rejection, of the prosecution’s case on intention’; and that, combined with the evidence given at trial by the appellant and his witnesses that he did not hold extremist views but merely wanted to discuss issues arising from the publications in question, the learned Judge was wrong to conclude that he could be sure to the criminal standard that the Jury had convicted the appellant on the basis that he did have the requisite intention.[42]In response, Ms Gates disputes a presumption that the jury had rejected the prosecution’s case on intention. She points out that it is entirely unknown whether the question emanated from one juror or the whole jury panel; whether it was directed at one count, or more than one count; whether it was merely exploratory or not. If it did represent the view of one or more of the jury on one or more of the counts at the time that the note was sent, any such view may well have changed by the time that the verdicts were reached. In short, she argues that the presumption argued for by the defence is entirely speculative.[43]Where the factual basis for the jury’s verdicts is unknown, it is the duty of the judge to decide the factual basis for sentence. As was made clear in R v Cloud [2001] EWCA Crim 510, another case in which a jury note led to an argument that the defendant should have been sentenced on a favourable basis:
“It was not the case that, because there was uncertainty as to what the jury thought, the judge should have made no decision himself but given the appellant the benefit of the doubt. It was for the judge to decide.”
[44]In the present case, when passing sentence, the judge concluded that having considered all the evidence, in particular, the nature of the messages the appellant had exchanged with the recipients of the publications, the ‘mindset’ material, and the ‘progressive fashion’ in which he introduced extremist material to his future wife, as well as the appellant’s own testimony, he was satisfied that the appellant intended to encourage the commission, preparation or instigation of acts of terrorism. That was a judgment that was open to this highly experienced judge to reach, having heard and considered all the evidence in the course of the trial. Having reached that conclusion, the categorisation of the offences as 2A was unarguably correct. The judge discounted the sentence by 1 year from the starting point of 7 years to reflect mitigation and imposed an extension period of 1 year as he was required to do as an offender of special concern, making a total term of 7 years. The sentence was neither wrong in principle nor manifestly excessive, and the appeal against sentence is also therefore dismissed.