Hundal & Anor, R v

On 19 July 2002, in the Crown Court at Maidstone, before His Honour Judge Patience QC, the appellants were convicted of one count of Belonging to a Proscribed Organisation, contrary to section 11(1) of the Terrorism Act 2000. They were each sentenced to 30 months' imprisonment. They now appeal either by leave given by the single judge or by leave given by this court against conviction and sentence.

The appeal has raised a number of issues before us, the most important of which are two in number. The first can be divided into two parts. The first relates to the legislation with which we are concerned, namely section 11 of the Terrorism Act 2000: does a person commit an offence if he joins an organisation proscribed in this jurisdiction, that is not in any way proscribed in the jurisdiction in which that person was resident at the time he joined the organisation?

The second part of that first issue is whether it makes any difference if the organisation is not proscribed in this country at the time that the defendant joined it, but it was proscribed after he became involved with the organisation, his involvement taking place outside this jurisdiction, in a jurisdiction where the organisation is not proscribed. The organisation in question was the International Sikh Youth Federation (“ISYF”).

The second issue raises the question as to whether the Crown on a prosecution under section 11 of the Terrorism Act 2000 is entitled to rely on evidence obtained as a result of a search of a defendant under Schedule 7 of that Act, which search is carried out under statutory powers which require the defendant to co-operate with the search and which subject him to penalties if he does not co-operate.

The facts can be summarised shortly. On 13 January 2002 a German registered Mercedes was stopped in the Customs area at Dover Docks. The vehicle had entered the country on a ferry from Calais. It contained the two appellants and a third Asian male. The car belonged to, and was driven by, the appellant, Mr Dhaliwal. It was searched and a number of items were seized. The other appellant, Mr Hundal, was found to be in possession of various documents, including an International Sikh Youth Federation membership card, a rubber stamp, headed notepaper, a 1996 diary, and a newspaper article relating to the ISYF. He said that he was the president of the ISYF in Germany. No documentation was found on Mr Dhaliwal, but in interview he admitted that he was a member of the ISYF. It is not in dispute that in this country the ISYF is a proscribed organisation; it became become proscribed on 29 March 2001.

In his defence, supported by his evidence, the appellant, Mr Hundal, said that he was not a member of the ISYF on 13 January 2002. He had been a member since 1994 until he returned his membership card to the General Secretary in April 2001, following a year as President. He had not been a member since that time. After he returned from a trip to Pakistan in August 2001 to get married, his membership had been forwarded to him, renewed by the General Secretary. Upon receipt he placed it in his diary where it stayed until he was arrested. He contended, as did Mr Dhaliwal, that the organisation, so far as he was concerned, was not a terrorist organisation. He agreed that he had attended a meeting of the organisation in Cologne on 13 January 2003, before travelling to the United Kingdom, when he made his resignation clear. As far as he was concerned, after he had left the Temple in Cologne where the meeting took place his membership had ceased.

Mr Dhaliwal agreed that he had been at the meeting on 13 January when, after seeing certain newspaper articles in which he was named as a member, he made it clear that he had resigned his membership. He had not been a member of the ISYF since October 2000 when his subscription had expired. He had not renewed it as he had become ill and had other commitments. He was not a member on 13 January 2002 when he entered the United Kingdom. It was for business reasons that he travelled to the United Kingdom. He did not know that the organisation was proscribed.

When it came to sentencing the two appellants the judge indicated that he accepted that they had not appreciated that the organisation was proscribed in the United Kingdom. That was a most important matter with regard to sentence because it would indicate that they had not entered this country with a deliberate intent of committing a criminal offence.

It is convenient to turn to the relevant provisions of section 11 of the 2000 Act. Section 11(1) provides:

“A person commits an offence if he belongs or professes to belong to a proscribed organisation.”

The offence is created by that subsection.

Subsection (2) provides:

“It is a defence for a person charged with an offence under subsection (1) to prove:

(a)

that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member; and

(b)

that he has not taken part in the activities of the organisation at any time while it was proscribed.”

On the facts of this case it is difficult to see how subsection (2) of section 11 had any relevance. Indeed Mr Sutton-Mattocks, who appears on behalf of the second appellant and who appeared for part of the time at the trial, points out that Mr Dhaliwal has never put it forward that it is part of his case that he was entitled to rely upon the subsection (2) defence. On the other hand, as we understand it, the first appellant relied upon subsection (2). However, it seems difficult to apply that section to the facts because before it has any relevance its intent and its language requires that a person has been a member of the organisation prior to it being proscribed; it has then become proscribed but he has not taken part in its activities thereafter. On the evidence it would seem that undoubtedly there were activities by both appellants after the organisation became proscribed. The question that arises is: does the fact that the activities and their involvement in the organisation took place in Germany, where it was not proscribed, mean that they could not be guilty of the offence?

If the position was that because an organisation carries on its activities in more than one country this meant that by joining the organisation in a country which is outside the jurisdiction of these courts, then the Terrorism Act would not apply to that organisation, this would enable a coach and horses to be driven through the objects of the legislation. All that a person would have to do would be to apply to the German branch rather than the English branch and automatically he would not be a person to whom the legislation applied. If that was true in regard to section 11(1) then it would also be equally true with regard to subsection (2). It would have to be activities in the United Kingdom which would need to be considered to see whether a person had a defence under that subsection. Speaking for myself, I regard it (as did the judge) as obvious that one could take into count the joining of an organisation outside the jurisdiction and activities outside the jurisdiction to determine whether the person was a member of the proscribed organisation.

We are conscious of the argument that was advanced by Mr Sutton-Mattocks about the criminal law of this country normally having no application outside the jurisdiction of this country. However, properly understood, the provisions of section 11 do not have extra- territorial effect. Properly understood, what is required is for there to be someone who is in this country, and therefore subject to its jurisdiction (as both the appellants were), who at the time that he is in this country is a member of the proscribed organisation. In order to establish that the person concerned is a member of the proscribed organisation, evidence can be given that the person joined the organisation from abroad or when abroad. That would not in itself make that person guilty of an offence. He would only be guilty of an offence when he was in this country. Either he would have to travel to this country in order to commit an offence after he became a member or he would already have had to be in this country and joined the local foreign branch of the proscribed organisation while in this country. But in any event the criminal law would apply to his activities because if his presence in this jurisdiction: his coming here as a member or his being a member in this country of the proscribed organisation.

In our judgment the judge was absolutely right in rejecting the first argument which was advanced that the fact that the activities took place abroad meant they were not relevant in determining whether the appellants committed an offence. Furthermore, the same is true of the argument that in some way this approach made the appellants retrospectively guilty contrary to Article 7 of the European Convention on Human Rights. There was nothing retrospective about their guilt. Their guilt only occurred when they arrived in this country. Their membership had taken place earlier; but membership alone, as the court has already indicated, did not create guilt. We conclude, as did the judge, that there is nothing in these arguments. Nothing in the argument Mr Vine advanced on behalf of Mr Hundal based on Article 7 can assist his client's cases.

We turn to the next issue which relates to the inadmissibility of the documents and the other evidence which was found as a result of the search carried out of Mr Hundal when he was interviewed. There is no doubt that under Schedule 7 of the Terrorism Act the officers conducting the interviews had powers of search. Schedule 7 provides that an examining officer who questions a person under paragraph 2 may, for the purposes of determining whether he falls within a section, search that person. The appellants were not in a position to object to those searches being conducted.

The evidence which was obtained from the searches went to the issue as to whether the appellants were members of the proscribed organisation. It is submitted vigorously by Mr Vine (and his submissions are adopted by Mr Sutton-Mattocks on behalf of Mr Dhaliwal) that the fact of those searches contravenes Article 6 of the European Convention on Human Rights, notwithstanding the fact that they are clearly authorised by the Act. That being so, the judge should not have allowed evidence of those searches to have been given by the prosecution. The judge rejected that submission. In the course of his ruling he said:

“In my judgment, the items found in the search were not evidence which Hundal had been forced to create by the use of compulsory powers. These items were clearly already in existence. The only effect of the use by DC Hall of compulsory powers to search under Schedule 7 of the 2000 Act was to bring the items to his attention, to that of the investigators who later interviewed Hundal under caution and ultimately to that of the court. Accordingly, the production and use of this independent evidence did not infringe Hundal's right to silence or his right not to incriminate himself. There was, accordingly, no infringement of Article 6 which rendered either the items found or the later interview under caution inadmissible.”

In that short passage the judge explained the essence of his reasons for coming to the conclusion that the evidence was properly placed before the jury.

Article 6, as is well known, as part of his right to a fair trial, protects a defendant's right to silence. He cannot be compelled to admit his guilt. The argument advanced on behalf of the appellants here is that by carrying out a compulsory search, which a person cannot object to, he is to be taken to be in the same position as a person who is compelled to make an admission.

In our judgment he is not in the same position. There is a clear distinction between requiring someone to answer questions and requiring a person to produce either documents or other information to the prosecution and a case where what the person concerned is compelled to do is to allow the relevant authority to conduct a search. That distinction is one which we consider is well recognised by the authorities in this area. Fortunately for the purposes of the present appeal this court in R v Kearns [2002] 1 WLR 2815 examined not only the authorities in this jurisdiction but also the authorities in Strasbourg. In the course of giving the judgment of the court Aikens J, after referring to the different authorities, drew attention to the fact that in Saunders (1996) 23 EHRR 313 the Strasbourg Court had recognised a distinction between a statement of a defendant that had been made under compulsion and the production of pre-existing documents or other evidence under compulsory powers (paragraph 51). In the following paragraph he said:

“.... if the evidence was already in existence and the only effect of the use of the compulsory powers was to bring such evidence to the attention of the court, then its production could not be so objectionable. That is because the existence and quality of such evidence are independent of any order to produce it that is made against the will of the accused person. Therefore the production of such pre-existing and 'independent' evidence could not render a trial unfair and so breach article 6.”

It seems to us that those remarks in that judgment are applicable to the facts which exist here.

In addition, in paragraph 53 Aikens J indicates the matters which that court regarded as being clear. Under subparagraph (4) he said:

“There is a distinction between the compulsory production of documents or other material which have an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there is no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances.”

In addition, in paragraph 54 Aikens J drew attention to the fact that the rights to silence and not to incriminate oneself that are implicit in article 6 are not absolute. They can be qualified or restricted if there is proper justification and if the restriction is proportionate.

For there to be a search in the sort of circumstances that exist here, where under the anti-terrorist legislation a person is examined in order to ascertain whether he is someone from overseas who should be allowed to remain in this country, it seems to us it is certainly well within the exceptions contemplated by Article 6. Such a search is proportionate and is justified because of the need in the interests of the security and safety of the public so as to protect them from terrorist activities. The interference is limited. It is similar to the general powers of search that exist under the criminal law. In our judgment a search is proportionate to the threat which terrorism creates. We therefore agree with the views expressed by the judge in rejecting that submission.

The third argument (raised by Mr Vine alone) relates to the refusal of an adjournment by the judge. Mr Vine on behalf of the appellant, Mr Hundal, had made an application for an adjournment because an expert witness in matters relating to terrorism was not available at the time of the trial. The adjournment would not have been necessary for a substantial period and he submits that he should have been allowed to have an adjournment for him to interview that witness. The judge indicated that he thought the application was “fanciful”.

Without intending to be in any way disrespectful to the argument Mr Vine advanced before us, we do not consider that the judge was in error in so categorising it. The expert could give no direct evidence whatsoever which was relevant to the issues which were going to be before the jury. Primarily the issue was whether in fact the appellants, who had been members of the organisation, were at the relevant time still members of the organisation. However, Mr Vine says that if the expert could have been brought to court then he or his solicitors on behalf of Mr Hundal would have been able to find out whether there was any substance in a statement made by the expert that the co-appellant, Mr Dhaliwal, was an agent of the Indian Government. This was indeed a fanciful contention. It is difficult to see that it had any relevance to the issues before the court. We regard the judge as being absolutely right in refusing an adjournment.

Accordingly, we would dismiss the appeals against conviction on the basis that there is no substance in any of grounds which have been advanced either on behalf of Mr Hundal or on behalf of Mr Dhaliwal.

The only matter that remains is the question of sentence. In regard to sentence, as we have indicated, the judge concluded that neither of the appellants was aware of the fact that what they were doing contravened the legislation in this jurisdiction. In those circumstances we consider that to impose 30 months' imprisonment in respect of the appellants' conduct was too severe a penalty. We would reduce those sentences to twelve months. Accordingly, we quash the sentences of 30 months' imprisonment and substitute sentences of twelve months.

We express our thanks to counsel for the assistance which they have given us.