M & Ors, R. v

Wednesday 7 February 2007

LORD JUSTICE HOOPER:

1. This is an appeal with the leave of the Recorder of London from a ruling made by him during a preliminary hearing. We heard the submissions yesterday and give our reasons today, given that the trial is due to start in April.

2. The respondent does not challenge our jurisdiction to consider the appeal.

3. The appellant also seeks leave to appeal a further ruling. In the light of our decision it is not necessary to consider that further ruling.

4. The appellants all face charges against section 57(1) and 58(1)(a) and (b) of the Terrorism Act, 2000. We take the facts from the skeleton argument prepared by Mr Bennathan QC:

“The appellant Raja was a school boy in Ilford and had an interest in radical Islam. On 24 ^th February 2006 he left home, leaving a note for his family claiming he was going abroad to fight by way of the 'conventional method of warfare' for that cause.

Thereafter Raja travelled up to Bradford where all the remaining appellants were students at the University. He stayed there for a few days; there was a degree of contact with his family who were, obviously, very upset. Thereafter he returned home [having been prevailed upon by his family to do so]. Various messages on computers and evidence gleaned from CCTV is advanced by the prosecution to as a basis for the allegation that all the other appellants were either aware of his plan to travel to Bradford in advance and/or had contact with him once he had done so.

When his family realised he had gone missing they contacted the police who, inter alia, searched his room and computer and found a quantity of radical Islamic material, propaganda and the like. Once his family informed the police of his safe return he was [then] arrested for possession of that material.

Subsequent police enquiries led them to arrest the other appellants and consequent searches revealed that they too, allegedly, were in possession of radical Islamic material and other material such as a USA military manual. Further computer searches revealed conversations in which some of the Bradford students had communicated with others and, allegedly, claimed to be devotees of Jihad.”

5. All but two of the counts on the indictment allege an offence against one appellant alone. Two of the counts allege offences against two appellants. In the case of the appellants other than Butt, the prosecution had after arrest only charged offences against section 58(1)(a). During the course of the committal proceedings counsel for the four defendants made submissions about the section 58 charges. Those submissions did not succeed. Mindful of the submissions, the prosecution decided to add on the section 57 charges, in effect to fill any gap that there might be in the section 58 counts. The appellant Butt was added by a voluntary bill of indictment.

6. Mr Edis QC, on behalf of prosecution, made it clear in his written submissions that there is a strong likelihood that at the end of the prosecution case a choice will be made to proceed on either the section 57 charges or the section 58 charges. During the course of argument he modified his position: he might wait until all the evidence had been called. When asked with which section he would choose to proceed, he was reluctant to answer. However, he seemed to favour the section 57 offence.

7. On behalf of the appellants it was submitted to the Recorder that the assumed facts did not constitute an offence against section 57. He ruled against that submission but gave leave to appeal his ruling. The question for the Court of Appeal was expressed in this way:

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

8. In outline, the section 57 counts and the section 58 counts are “mirror images”. In the words of the prosecution each pair of counts “relates to precisely the same conduct”. We take an example. Counts 1 and 2 read as follows:

Count 1

STATEMENT OF OFFENCE

COLLECTING OR MAKING A RECORD OF INFORMATION OF A KIND LIKELY TO BE USEFUL TO A PERSON COMMITTING OR PREPARING AN ACT OF TERRORISM contrary to section 58(1)(a) of the Terrorism Act 2000

PARTICULARS OF OFFENCE

MUHAMMED IRFAN RAJA on a day between the 24 ^th December 2005 and 27 ^th February 2006, collected or made a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism namely 3 CDs exhibited as NAL/1 and AJB/24.

Count 2

STATEMENT OF OFFENCE

POSSESSING AN ARTICLE IN CIRCUMSTANCES THAT GIVE RISE TO A REASONABLE SUSPICION THAT HIS POSSESSION IS FOR A PURPOSE CONNECTED WITH THE COMMISSION, PREPARATION OR INSTIGATION OF AN ACT OF TERRORISM contrary to section 57(1) of the Terrorism Act 2000.

PARTICULARS OF OFFENCE

MUHAMMED IRFAN RAJA on a day between the 24 ^th December 2005 and 27 ^th February 2006 possessed articles, namely 3 CDs exhibited as NAL/1 and AJB/24, in circumstances which give rise to a reasonable suspicion that his possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism.

9. Counts 5 and 6 read:

Count 5

STATEMENT OF OFFENCE

POSSESSING A DOCUMENT OR RECORD CONTAINING INFORMATION OF A KIND LIKELY TO BE USEFUL TO A PERSON COMMITTING OR PREPARING AN ACT OF TERRORISM contrary to section 58(1)(b) of the Terrorism Act 2000

PARTICULARS OF OFFENCE

AWAAB IQBAL AND AITZAZ ZAFAR on a day between the 24 ^th February 2004 and 3 ^rd March 2006, possessed a document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism, namely the information contained in 3CDs exhibited as AJB/24 and NAL/1.

Count 6

STATEMENT OF OFFENCE

POSSESSING AN ARTICLE IN CIRCUMSTANCES THAT GIVE RISE TO A REASONABLE SUSPICION THAT HIS POSSESSION IS FOR A PURPOSE CONNECTED WITH THE COMMISSION, PREPARATION OR INSTIGATION OF AN ACT OF TERRORISM contrary to section 57(1) of the Terrorism Act 2000.

PARTICULARS OF OFFENCE

AWAAB IQBAL AND AITZAZ ZAFAR on a day between the 24 ^th February 2004 and 3 ^rd March 2006 possessed articles, namely 3 CDs exhibited as AJB/24 and NAL/1, in circumstances which give rise to a reasonable suspicion that their possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism.

10. The other counts are in generally similar form to these four counts.

11. To understand sections 57 and 58 it is necessary first of all to understand the meaning of the word “terrorism” and thus “acts of terrorism”, to which sections 57 and 58 refer.

12. Section 1 of the Terrorism Act 2000 provides:

“(1) In this Act 'terrorism' means the use or threat of action where --

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it --

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section --

(a) "action" includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”

13. It will be helpful to simplify this section in the light of the allegations made against the appellants. In the words of the prosecution:

“This case rests on the proof that each defendant now prosecuted was party to a settled plan to go on jihad himself, or to encourage or facilitate others to do so. Jihad means, in this case, going to Pakistan and training as a terrorist, and thereafter committing such acts of terror as were decided nearer the time.”

14. Mr Edis told us that he would not seek a conviction unless he could prove that there was a settled plan of this kind. However, the appellants are not charged with conspiracy, attempt or incitement to commit any offence. As we have shown, there is only one joint charge and that relates, so it appears, to alleged joint possession.

15. Simplifying section 1 down to its bare bones and for the purposes of this appeal, the relevant alleged acts of terrorism can be described as:

The use (or threat of the use) of firearms or explosives to endanger lives here or abroad, such use being for the purpose of advancing a political, religious or ideological cause.

16. Before looking at sections 57 and 58 it is of interest to set out part of section 54. That provides:

“(1) A person commits an offence if he provides instruction or training in the making or use of --

(a) firearms,

(b) explosives, or

(c) chemical, biological or nuclear weapons.

(2) A person commits an offence if he receives instruction or training in the making or use of --

(a) firearms,

(b) explosives, or

(c) chemical, biological or nuclear weapons.

(3) A person commits an offence if he invites another to receive instruction or training and the receipt --

(a) would constitute an offence under subsection (2), or

(b) would constitute an offence under subsection (2) but for the fact that it is to take place outside the United Kingdom.

(4) For the purpose of subsections (1) and (3) --

(a) a reference to the provision of instruction includes a reference to making it available either generally or to one or more specific persons, and

(b) an invitation to receive instruction or training may be either general or addressed to one or more specific persons.

(5) It is a defence for a person charged with an offence under this section in relation to instruction or training to prove that his action or involvement was wholly for a purpose other than assisting, preparing for or participating in terrorism.”

17. Section 57 provided:

“(1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.

(2) It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism.

(3) In proceedings for an offence under this section, if it is proved that an article --

(a) was on any premises at the same time as the accused, or

(b) was on premises of which the accused was the occupier or which he habitually used otherwise than as a member of the public,

the court may assume that the accused possessed the article, unless he proves that he did not know of its presence on the premises or that he had no control over it.

(4) A person guilty of an offence under this section shall be liable --

(a) on conviction on indictment, to imprisonment for a term not exceeding 10 years, to a fine or to both, or

(b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both."

18. Section 58 provides (in part):

“(1) A person commits an offence if --

(a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or

(b) he possesses a document or record containing information of that kind.

(2) In this section "record" includes a photographic or electronic record.

(3) It is a defence for a person charged with an offence under this section to prove that he had a reasonable excuse for his action or possession.”

19. The penalty for a section 57 offence was, at the time, the same as that for an offence under section 58. Section 13 of the Terrorism Act 2006 has increased the sentence for section 57 offences to a maximum of 15 years. All the section 57 counts allege an offence against section 58(1)(b), except counts 1 and 3 which allege an offence against section 58(1)(a).

20. Section 57 refers to an “article”, defined in section 121 to include “substance and any other thing”. Section 57 provides that the relevant purpose is one “connected with the commission, preparation or instigation of an act of terrorism”. Section 58 refers to “a record of information”, “a document or record” (including “a photographic or electronic record”) “of a kind likely to be useful to a person committing or preparing an act of terrorism”.

21. In this case the prosecution say that the section 57 articles are electronic storage devices such as hard drives (including one on a Bradford University computer), CDs and DVDs, a USB storage device and a video recording, and in count 14 which related to Usman Malik, two documents, “Raising Mujahideen Children” and “Join the Caravan”. In the mirror section 58(1)(b) counts, the reference is to possession of a document or record (or in counts 1 and 3, the collecting or making of a record of information) being a document or record described as an article in the section 57 counts. “Join the Caravan”, we were told, was a printout of material on Malik’s hard drive. The other appellants had copies of “Join the Caravan” on the electronic storage devices, of which they were in possession. Mr Edis told us that “Join the Caravan” was written by a person now killed. The author, so Mr Edis tells us, is telling his readers that it is their religious duty to join the jihad, by which the author meant the fight to expel any non-Muslim from what is now or has in the past been “Muslim” land, including for example Spain.

22. What led the prosecution to add the section 57 counts was the inclusion in section 57 of the word “instigation” and its exclusion in section 58. Section 58 is concerned with the commission or preparation of acts of terrorism. Section 57 is concerned with “commission, preparation or instigation” of acts of terrorism. Roughly speaking “instigation” presumably means: by one’s actions to cause something to begin to happen or to set off a train of events.

23. During the course of argument Mr Edis developed a further reason why the prosecution preferred section 57. Section 58 criminalises the collection of information, or the making of a record of information, which is "likely to be useful .... etc". The Crown must prove that the information referred to in the count is information which is likely to be useful. Section 57 criminalises the possession of an article. It is not necessary for the Crown to prove that the article is in fact likely to be useful, nor indeed that it is in fact in his possession for a purpose connected with the commission, preparation or instigation of an act of terrorism. They need prove only that his possession of it gives rise to a reasonable suspicion that that is the case. Then it is for the defence to bring themselves within the statutory defence in section 57(2).

24. With this in mind, we now look at the different ways a jury would have to approach the two sections.

25. The ultimate issue for a jury in the section 57 counts would be:

“Did the defendant possess an article for a purpose connected with the commission, preparation or instigation of an act of terrorism?”. The jury would have to ask “Why did he have the article?”. “Was it for the proscribed reasons or for some other reason?”.

26. In the submissions of Mr Edis, a person in possession of “Join the Caravan” would have it for a purpose connected with the “instigation” of terrorism if his purpose was to give it to another person intending that the other person would join the jihad.

27. The ultimate issue for a jury in the section 58 (1)(a) counts would be: “Did the defendant collect or make a record (including a photographic or electronic record) of information of a kind likely to be useful to a person committing or preparing an act of terrorism?”. If so: “Did he have a reasonable excuse for his action?”.

28. The ultimate issue for a jury in the section 58 (1)(b) counts would be: “Was the defendant in possession of a document or record (including a photographic or electronic record) containing information of a kind likely to be useful to a person committing or preparing an act of terrorism?”. That would, we presume without having heard argument, require the application of an objective test. If the answer is “Yes”, then the issue would be: “Did the defendant have a reasonable excuse for his possession of the document or record?”.

29. As Mr Edis pointed out, possession of a document such as “Join the Caravan”, if it was not likely to be useful to a person committing or preparing an act of terrorism, would not fall within section 58. This, he submits, is a lacuna which can be filled by the use of section 57.

30. We have not factored in the burden of proof, because that does not appear to be of any real help on this appeal.

31. Although the question posed for this court refers to data electronically stored, it will be noted that the section 57 counts did not refer to data, but to the storage device and in count 14, the two documents. Thus the question as worded did not raise the issue of the documents. Mr Gottlieb tells us however that he had intended to argue this point at some stage.

32. It was submitted to the Recorder that “data” is not an article. Although the Recorder rejected that argument, in our view the issue was whether the items listed in the section 57 counts are “articles”, not whether the data is an article. The items listed in the section 57 counts are all articles. Is there any difference between the documents in Count 14 and the various storage devices in that and in the other section 57 counts? Mr Bennathan and the other counsel for the appellants submit that there is. We do not agree. There is no practical difference between a book which a person can read (perhaps with help) and a CD which can be read by inserting it into a computer. To submit that the CD is not an article because it can only be read with a computer seems to us farfetched. We thus agree with the Recorder, albeit for slightly different reasons.

33. But that is not, in our view, the end of the matter. It was submitted to the Recorder on behalf of the defendants (page 4) that the prosecution’s interpretation of section 57, in effect, made section 58 redundant. Any “document or record” made or possessed will be an “article” and section 57 applies. The Recorder did not, so Mr Edis concedes, deal with this argument.

34. It is submitted that section 58(1)(b) is completely redundant and nearly all of section 58(1)(a) is also redundant. As Mr Edis submitted to us, the only conduct which, so it appears, would be caught by section 58 only would be someone “collecting” information but not writing it down.

35. Mr Edis accepted that his argument was novel. In no case had section 57 or its similarly worded predecessors ever been used for the making or possession of documents or records. No one has ever suggested, so it appears, that those who call in writing for attacks on non-Muslims could be convicted under section 57 of possessing an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the instigation of an act of terrorism. During the recent debate about the provisions of the Terrorism Act 2006 criminalising the “glorification” of terrorism, it has not been suggested (so it appears) that section 57 of the 2000 Act had already gone a long way to criminalize this kind of conduct.

36. Is Mr Edis right? In our view, and bearing in mind that penal statutes should be strictly construed, Mr Edis is not right. It is apparent from the wording of the two sections and their juxtaposition that Parliament has laid down a different regime for documents and records and intended so to do. For the purposes of section 58 possession of a document of a kind likely to be useful to a person “instigating” an act of terrorism is not enough (unless, of course, the document is also of a kind likely to be useful to a person “committing or preparing” an act of terrorism”). Parliament has not chosen to use the “diffusely drawn terms” of section 57 (to adopt the words of Mr Edis in describing section 57) when the making or possession of documents or records is in issue. Mr Edis rightly submitted that legislation can and often does create overlapping offences. But Parliament could not have intended that the regime for documents and records in section 58 could be sidestepped by using section 57 and describing them as articles. Section 58 is not redundant.

37. We add that Mr Bennathan wanted to refer us to the ECHR. It is not necessary to do so.

38. For these reasons the appeal succeeds.

39. An advantage of our decision is that this case (involving as it does at the moment five Queen’s Counsel and juniors) could, we believe, now be dealt with speedily and easily. Taking the section 58(1)(b) counts and assuming possession of the material is not in issue, the question in relation to any item of material will be (so it seems to us):

“Does the item contain information of a kind likely to be useful to a person committing or preparing an act of terrorism?”.

Assuming that the jury could properly answer that question in the affirmative and is sure that the item contains information of a kind likely to be useful to a person committing or preparing the acts of terrorism upon which the prosecution rely, then the jury will have to consider whether the defendant had a reasonable excuse for his possession of the item. The burden of proof on the defendant in relation to reasonable excuse is only an evidential one (see section 118 of the 2000 Act).

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