R v Tasnia Ahmed

This is a renewed application for leave to appeal against conviction following refusal by the single judge.

On 25 April 2024, following a trial in the Crown Court at Woolwich before His Honour Judge Kinch KC and a jury, the applicant, who is now 23 years old, was convicted of two counts of failing to disclose information about acts of terrorism, contrary to section 38B of the Terrorism Act 2000.

On 16 July 2024, she was sentenced by the trial judge to a custodial term of 12 months, suspended for two years, with a further licence period of 12 months. Because these were offences listed in Schedule 6 to the Counter Terrorism and Sentencing Act 2021, the sentence took the form of a suspended special custodial sentence for an offender of particular concern, pursuant to section 28 of the Sentencing Act 2020. The following community requirements were added: an unpaid work requirement of 150 hours, a rehabilitation activity requirement of 60 days, a GPS trail monitoring requirement, and any further requirements identified by the supervising officer. By reason of the convictions, the applicant is required to comply with the notification requirements of the Counter Terrorism Act 2008 for a period of ten years.

The offences arose from the applicant's relationship and contact with a young man of similar age, Al-Arfat Hassan. The offences concerned the applicant's failure to disclose information to the police about Mr Hassan's activities as a would be terrorist. The prosecution case was that during exchanges of messages by text and over social media, between November 2021 and March 2022, Mr Hassan revealed to the applicant his desire, intention and plans to commit acts of terrorism in the form of a mass casualty attack with a knife or improvised explosive device (a bomb).

Count 1 alleged that during that period, having information which she knew or believed might be of material assistance in preventing the commission by another person of an act of terrorism, the applicant failed to disclose that information to a constable as soon as was reasonably practicable.

On 9 March 2022, Mr Hassan was arrested and charged with terrorist offences and remanded into custody at HMP Wandsworth. Between that date and her own arrest in July 2022 the applicant did not disclose to the police the information she had, including the messages with Mr Hasan in which he had admitted his intention, desire and plan to commit a terrorist act.

Count 2 alleged that during that period when Mr Hassan was in custody the applicant had information which she knew or believed might be of material assistance in securing Mr Hassan's prosecution or conviction for an offence involving the commission, preparation or instigation of an act of terrorism, but failed to disclose that information to the police. It was not suggested that there was any new or additional information that she withheld. But after Mr Hassan's arrest, she had an opportunity to come forward with the information she already had. Instead, until at least 31 March 2022, when her phone was seized by the police, she continued to contact Mr Hassan when he was in prison.

The messages exchanged, on which the prosecution relied, were set out in a very extensive prosecution timeline. The prosecution case was that the applicant knew or believed that Mr Hassan was a terrorist, and that the messages showed that she was aware that she had incriminated herself by sending messages to Mr Hassan in which she accepted and encouraged his jihad. The prosecution case was that fear of self-incrimination was the reason why she was unwilling to go to the police.

The defence case was that the applicant knew Mr Hassan as a rap artist who was prominent online, with a very large number of followers, whose lyrics contained expressions of violence, but that she did not know or believe that he was intent on committing any act of terrorism. She did not take seriously what he was saying, and it was treated as a joke between them.

Mr Hassan had been convicted in a previous, separate trial of possessing terrorist information, contrary to section 58(1)(b) of theTerrorism Act 2000, relating to his possession of an Isis video which gave instructions on how to make an improvised explosive device using chemicals, including acetone and hydrogen peroxide, and which showed a demonstration of how to kill someone with a knife. The jury had been unable to reach verdicts on a more serious count.

Following an abortive retrial, Mr Hassan had subsequently pleaded guilty to an offence of possessing articles for a terrorist purpose, contrary to section 57(1) of theTerrorism Act 2000. That offence related to his possession of the chemicals acetone and hydrogen peroxide. The count in the trial and retrial indictment alleging a more serious terrorist offence, contrary to section 5 of the 2000 Act, had not been pursued further, and a not guilty verdict was entered.

In the course of the applicant's trial, the judge was required to make a number of evidential rulings which are challenged in the proposed grounds of appeal. Taking the rulings chronologically – although for the purpose of her submissions this morning Miss Brimelow KC grouped them differently – the judge acceded first to the prosecution's application to adduce Mr Hassan's two convictions, together with a brief factual summary of what the offences involved. That is the subject of ground 2.

Second, the judge acceded to an application by the prosecution to adduce evidence of internet searches by Mr Hassan for the purchase of acetone and hydrogen peroxide, and the purchase of knives and a machete. That ruling is the subject of ground 3. Following that ruling, the relevant evidence was presented to the jury by way of formal admissions in an extensive set of agreed facts.

Third, at the conclusion of the prosecution case there was a defence submission of no case to answer in respect of both the counts which the judge rejected. That is the subject of ground 1.

The applicant gave evidence over a period of three days. The judge's summary of her evidence in the summing up occupied 12 pages of the transcript. Witnesses of fact and character witnesses were called on her behalf. Before counsel's closing speeches, there was extensive legal discussion over the formulation of the judge's directions of law to the jury and on the matters which needed to be covered in the summing up. Arising out of those legal directions it is said that the judge wrongly declined to give the jury a direction in relation to Article 9 and Article 10 of the European Convention on Human Rights, and wrongly failed to leave to the jury the statutory defence of reasonable excuse. These complaints are the subject of ground 5.

In relation to the summing up itself, it is said that the judge's direction on knowledge or belief was inadequate (ground 6); that his good character direction was inadequate (ground 7); and that the judge's direction in relation to Mr Hassan's convictions and internet searches was inadequate (ground 8).

We are very grateful to Miss Kirsty Brimelow KC for her written and oral submissions, particularly as she appears today for the applicant pro bono in the best traditions of the Bar.

Like the single judge, we also have a very detailed Respondent's Notice settled by prosecuting counsel at trial, Mr Jonathan Sandiford KC.

Before addressing the individual proposed grounds of appeal, we should say a little about the nature of the evidence in the case and the way it was presented. As is common, in our experience, in cases of this kind, the prosecution case was presented almost exclusively in the form of a timeline, together with relevant agreed facts. The only prosecution witnesses called live were the two officers in the case who, we understand, took it in turns to take the jury through the timeline item by item. The prosecution timeline ran to 62 pages and contained around 3,000 individual entries. Those entries reproduced or referred to the content of text messages, WhatsApp messages, voice notes and the like, exchanged between Mr Hassan and the applicant. There were also some exchanges between the applicant and other parties, notably her two female cousins.

Again, as is common in cases such as this where the prosecution have had to make a selection from a much greater volume of material, the defence put before the jury their own timeline, which ran to 86 pages and contained a similarly large number of entries. To illustrate for the jury the volume of contact overall between the applicant and Mr Hassan, there was an agreed fact that some 128,000 messages were found on the applicant's phone for the period October 2021 to March 2022, the majority of which were to and from Mr Hassan. In this way, care was taken to ensure that the jury had the full flavour of the contact between the applicant and Mr Hassan, with the benefit in due course of hearing the applicant give evidence at length about particular examples of their contact, as well as hearing her cross-examined by the prosecution upon the entries relied upon to prove the case against her.

We turn to the first and most fundamental ground of appeal, ground 1: that the judge was wrong to reject the submission of no case to answer. The judge gave his ruling on Monday 8 April 2024, having had the benefit of written submissions from counsel (which we do not have) and oral argument. The judge identified the strands of the defence submission. Essentially, Miss Brimelow argued before the judge that, on the second limb of Galbraith, the evidence relied on by the prosecution overall was tenuous and conflicted with other evidence in the case so that, taking the prosecution evidence at its highest, a jury properly directed could not convict on it.

By the close of the prosecution case, the defence timeline had also been introduced into evidence by cross-examination of the officers in the case. The defence submitted that, looked at as a whole, the communications supported the view that what was revealed was a saga of teenage exchanges which by any reasonable assessment did not support a terrorist interpretation and a reliable basis for prosecution. The prosecution submitted that there were many entries which were powerfully supportive of their interpretation and that the inferences the prosecution sought to rely upon were not displaced by the context said to be provided by the defence entries.

The judge ruled that he did not accept the defence argument that, in effect, the jury could not rule out innocent interpretation overall. As he put it, he was satisfied that there was a "clear issue to be tried … as to the interpretation to be placed on the entries in the timeline as to the applicant's knowledge and belief in relation to Mr Hassan's plans and activities".

In her oral submissions before us, Miss Brimelow has emphasised strongly that the prosecution's points relied upon from the timeline were contradicted by those which the defence relied upon, and in that sense the evidence became tenuous.

We have considered carefully all the points made in the grounds of appeal and in the very detailed recitation in the Respondent's Notice of the prosecution's points in relation to the timeline. It is clear to us that the interpretation of the prosecution timeline, in the light of entries in the defence timeline as well, was purely a question of fact for the jury to assess. We agree with the single judge that the points raised in this ground of appeal are jury points. The key issue was whether the jury could properly infer that the applicant had the requisite knowledge or belief that she had information which might be of material assistance in preventing the commission of an act of terrorism (count 1), and in securing the prosecution or conviction of another person for an offence involving the commission, preparation or instigation of an act of terrorism (count 2). The test was whether a reasonable jury – not all reasonable juries – could, on one possible view of the evidence, be entitled to reach such an inference as to the applicant's knowledge or belief. If the judge concluded that a reasonable jury, properly directed, could be entitled to do so on the evidence, taking the prosecution case at its highest, then the case had to continue: see R v G and F [2012] EWCA Crim 1756. That test, we are quite sure, was plainly satisfied.

Another strand of the submission of no case to answer challenged the sufficiency of evidence in relation to "material assistance" in both counts. Here it is important to note that the statutory wording is "might" be of material assistance, not "would" be of material assistance. Again, the judge was plainly right to conclude that what Mr Hassan had told the applicant about his intention to carry out a terrorist attack was information which might be of material assistance to the authorities in the way required.

A yet further strand to Miss Brimelow's half-time submission was her argument that the prosecution of this case violated the applicant's Article 9 and Article 10 ECHR rights to freedom of religion and freedom of expression. We are quite satisfied, having considered the material very carefully, that the judge rightly rejected this argument. Article 9 and Article 10 create qualified rights. Charging the offence of failing to disclose material information which might prevent terrorist acts does not amount to an interference with those rights, still less a violation. We shall return later to Article 9 and Article 10 in relation to ground 5.

The half-time submission in relation to count 2 was that after Mr Hassan's arrest, the police had all the information that the applicant could have given them and that once she provided the police with the PIN to her phone, there was nothing further for her to do. To the contrary, however, it could properly be argued that after Mr Hassan's arrest there were much stronger grounds for the applicant to believe that he might be involved in terrorist activity and that her information might provide material assistance. That information was contained not just on her phone, but in her head.

Like the single judge, we are satisfied that it is not arguable that the submission of no case to answer was wrongly refused. There was more than sufficient evidence for a jury, properly directed, to conclude that the offences in count 1 and count 2 were made out.

We shall take grounds 2 and 3 together. The judge ruled that Mr Hassan's two convictions for terrorist related offences were admissible. The defence argued that the jury's focus should be on the applicant's knowledge or belief as evidenced by information that she was given by, or gleaned from, Mr Hassan. It was argued that as there was no suggestion that the applicant knew of the content of the Isis video, or of the chemicals in his flat which he had ordered online, so those items did not contribute to an evaluation of the applicant's state of knowledge of Mr Hassan's plans. As the judge said, however, the central issue for the jury in considering the applicant's state of mind would be their assessment of the exchanges between the applicant and Mr Hassan, where he presented himself as a terrorist. Did she take those exchanges seriously, or may she have dismissed them as empty posturing?

We agree with the single judge that the trial judge was unarguably right to conclude that the convictions, with a short description of the facts behind each offence, were admissible. They showed that Mr Hassan was radicalised and a would be terrorist. This went to the applicant's state of mind and to her knowledge, from her communications with him. Importantly, it also went to rebut the applicant's claims that she thought that Mr Hassan was a fantasist and did not take him seriously. A real would be terrorist would be less likely to be perceived by the applicant as merely joking around. The jury were clearly going to be wondering whether Mr Hassan was just a fantasist, or a real would be terrorist at the time he and the applicant exchanged messages. This was an obvious gap in the jury's necessary understanding of the background, which his past convictions filled. The evidence was plainly relevant and admissible. There was no basis to exclude it under section 78 of the Police and Criminal Evidence Act 1984. The fairness of the trial was maintained by the judge directing the jury specifically that Mr Hassan's convictions did not mean that the applicant was guilty of any of what was alleged against her.

Ground 3 concerned the admission of internet searches by Mr Hassan for knives and chemicals. The judge gave a separate ruling on this and concluded that the evidence was properly admissible for the same reasons that he had admitted Mr Hassan's convictions. This evidence showed that Mr Hassan was a serious would be terrorist, rather than a fantasist, and that the information in the applicant's possession might have been of material assistance in preventing an act of terrorism or securing his prosecution or conviction. There were messages between Mr Hassan and the applicant to the effect that he had acquired bladed weapons and, on many occasions, that he intended to use them in a mass casualty attack. The Isis video which he was convicted of possessing gave instructions on how to kill with a knife.

In her grounds of appeal, Miss Brimelow suggests that the jury may well have been in fear and "risk averse in their approach to the guilt or non-guilt of the applicant and that prejudice drove the convictions". That, with respect, is pure speculation. The evidence was plainly relevant and admissible. We are satisfied that this ground of appeal is not arguable.

Ground 4 concerns the refusal of the trial judge to allow the defence to introduce two separate areas of evidence. In her oral submissions Miss Brimelow described this ground as the "flip side" of ground 2 – in other words, the flip side of the prosecution's entitlement to adduce evidence of Mr Hassan's previous convictions and the searches he had made on the internet.

The first of these points relates to cannabis found in the car of Mr Hassan's brother. The defence argument was that this supported the applicant's case that Mr Hassan was not truly a "fundamentalist", as he was making out in his exchanges with the applicant online. However, as the single judge pointed out, there was no evidence that the cannabis was Mr Hassan's, or that he was aware of the cannabis. It was, therefore, irrelevant to any issue that the jury had to decide, quite apart from the suggested connection being so tenuous. This ground of appeal is not arguable.

The second complaint in ground 4 is that the judge was wrong to exclude evidence the defence sought to introduce of messages sent by Mr Hassan to seven other young women around the same time that he was messaging the applicant, in which he adopted the persona of a jihadi. The argument seems to have been that when considering the applicant's knowledge or belief as to his alleged terrorist intentions and whether the applicant was lying about what she thought, it was relevant that similar messages to other young women did not result in their contacting the police. In other words, these other women did not take his violent messages seriously either.

The short answer to this is that such evidence was wholly irrelevant to the applicant's state of mind and therefore inadmissible. There would have been no evidence as to what these other young women made of such messages and why they apparently took no action. The jury were required to consider only the applicant’s subjective state of mind, and only her knowledge and belief. This ground of appeal is not arguable.

We turn to criticisms of the judge in not giving particular directions to the jury.

The first complaint in ground 5 is that the judge failed to give a direction to the jury as to how they should approach the applicant's right to discuss religion and debate with Mr Hassan in the exercise of their rights under Articles 9 and 10 of the ECHR. This echoes one of the strands of the submission of no case to answer, which we have already considered. Miss Brimelow developed this submission in great detail in her written grounds of appeal. But, with respect, it seems to us that the submission misses the point. It is one thing – and perfectly proper – to have a discussion about Islamic observance and religious expression. It is quite another to have a discussion about planned terrorism, which was the prosecution's case. The defence case was that the applicant did not know or believe that she had any material information to disclose, because she did not believe what Mr Hassan was saying about his intentions. It was never the prosecution case that a simple discussion of religion and religious observance was inappropriate.

In her written submissions in support of this ground of appeal, Miss Brimelow suggests the possible wording of a direction which the judge could have given to avoid the jury falling into the trap of thinking that any such discussion of religious observance was somehow impermissible.

In fact, in his directions of law (oral and written) the judge addressed this concern under the general heading "Assumptions". He directed the jury:

The second complaint in ground 5 is that the judge should have left to the jury the statutory defence of “reasonable excuse” provided by s.38B(4) of theTerrorism Act 2000. This ground is not arguable. The applicant did not raise the defence of reasonable excuse, the evidential burden of which rested upon her. For example, it was not raised in her defence case statement. Nor was there any evidence to support such a defence. The applicant's case was that she was never under any obligation to make disclosure because she never took Mr Hassan seriously and never had information that she knew or believed might have been of material assistance to the police. There was no evidence capable of supporting a defence of reasonable excuse and in particular no medical evidence that the applicant was suffering from any medical condition that rendered her unable to contact the police or to disclose material information had she wished to do so.

We turn, finally, to criticisms of the directions which the judge did give to the jury.

The contention in ground 6 is that the judge gave an inadequate direction to the jury on "knowledge or belief". The complaint is that the direction included insufficient emphasis upon suspicion not being enough. In his written and oral directions of law to the jury, the judge said:

That was a perfectly proper direction in law, tailored to the facts of this case. The real issue for the jury was whether the applicant believed what Mr Hassan had said to her, as the prosecution alleged, or whether she had not taken it seriously, as she maintained. This ground of appeal is not arguable.

In ground 7 the complaint is that the good character direction given by the judge was inadequate in that it did not contain the detail of the applicant's positive good character. The judge gave a perfectly conventional good character direction in his written and oral directions of law, in which he explained both limbs of the direction. Later in the summing up, in his summary of the facts, he reminded the jury of the evidence of the applicant's good character, as it had emerged from her own evidence and from witnesses called on her behalf.

Miss Brimelow, in her oral submissions, makes the point that because the judge did not set out matters of that kind in his legal direction given before speeches, and only returned to the matter later on in the summing up, it "got lost in the narrative". We disagree. This ground, we are quite satisfied, is not arguable.

Lastly, the complaint in ground 8 is that the judge's direction in relation to Mr Hassan's convictions and the internet searches for knives and chemicals was inadequate. It is said that the judge should have reminded the jury that Mr Hassan had not been convicted of the preparation of a terrorist offence, contrary to section 5 of theTerrorism Act 2000, and that neither of the two convictions related to knives.

In fact, the judge did address this point, in so far as was proper, in his directions of law when dealing with Mr Hassan as a discrete topic. He said:

In the same direction the judge also drew a distinction for the jury between messages sent by Mr Hassan to the applicant, which she obviously knew about, and searches for and purchases of knives and other materials, about which there was no evidence that she knew. The judge correctly directed the jury that they were entitled to take into account everything they had heard about Mr Hassan in seeking to reach a conclusion about what his plans were and what the applicant knew or believed about him. It would have been inappropriate to confuse the jury with a reference to an offence under section 5 of theTerrorism Act 2000.

For all these reasons, and despite Miss Brimelow's valiant submissions, for which we repeat our gratitude, we are quite satisfied that none of the grounds of appeal is arguable. It is not arguable that the applicant's convictions are unsafe, or that her trial was in any way unfair.

Accordingly, the renewed application for leave to appeal against conviction is refused.