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|Session 2008 - 09|
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|Judgments - R v G (Respondent) (on appeal from the Court of Appeal Criminal Division)|
R v J (Respondent) (on appeal from the Court of Appeal Criminal Division)
HOUSE OF LORDS
 UKHL 13
on appeal from: EWCA Crim 922 EWCA Crim 1161
R v G (Respondent) (on appeal from the Court of Appeal Criminal Division)
R v J (Respondent) on appeal from the Court of Appeal Criminal Division)
David Perry QC
(Instructed by Crown Prosecution Service)
(Instructed by Smith Partnership (G),
Hearing dates: 24, 25 and 26 NOVEMBER 2008
WEDNESDAY 4 MARCH 2009
from the Appellate Committee
4 MARCH 2009
R v G (Respondent) (on appeal from the Court of Appeal Criminal Division)
R v J (Respondent (on appeal from the Court of Appeal Criminal Division)
ORDERED TO REPORT
The Committee (Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Mance) have met and considered the cause R v G (Respondent) (on appeal from the Court of Appeal Criminal Division) and R v J (on appeal from the Court of Appeal Criminal Division) We have heard counsel on behalf of the appellants and respondent. The report has been prepared by Lord Rodger.
1. This is the considered opinion of the committee.
2. There are two appeals before the House which raise issues relating to the interpretation of section 58 of the Terrorism Act 2000 (the 2000 Act). Since some of the argument is based on a comparison between section 57 and section 58, it is convenient to begin by setting out the relevant parts of both.
3. Section 57(1)-(3) provides:
(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.
Subsection (4) originally provided for a maximum of 10 years imprisonment plus a fine on conviction on indictment, but this was increased to 15 years imprisonment by section 13 of the Terrorism Act 2006 (the 2006 Act). On summary conviction the maximum penalty is imprisonment for six months and a fine not exceeding the statutory maximum.
4. Section 58(1)-(3) provides:
(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.
Subsection (4) provides for a maximum penalty of 10 years imprisonment plus a fine on conviction on indictment and a maximum penalty of six months imprisonment and a fine not exceeding the statutory maximum on summary conviction. Subsection (5) empowers the court, before which a person is convicted of a section 58 offence, to order the forfeiture of any document or record containing information of the kind mentioned in subsection (1).
5. Section 118(1)-(4) is important for the operation of both these sections. They provide:
(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter.
(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution prove s beyond reasonable doubt that it is not.
(3) Subsection (4) applies where in accordance with a provision mentioned in subsection (5) a court -
(a) may make an assumption in relation to a person charged with an offence unless a particular matter is proved, or
(b) may accept a fact as sufficient evidence unless a particular matter is proved.
(4) If evidence is adduced which is sufficient to raise an issue with respect to the matter mentioned in subsection (3)(a) or (b) the court shall treat it as proved unless the prosecution disproves it beyond a reasonable doubt.
By subsection 5(a), subsections (2) and (4) apply to sections 57 and 58 of the 2000 Act.
The Facts of Gs Case
6. The first case concerns a Mr G who is awaiting trial in the Crown Court at Woolwich where he faces two counts of terrorism. The first is under section 5(1) of the 2006 Act. It alleges that between 13 April 2006 and 3 February 2007 Mr G was preparing to commit acts of terrorism. The second count, under section 58 of the 2000 Act, alleges that between 27 January 2005 and 3 February 2007 Mr G collected information of a kind that was likely to be useful to a terrorist.
7. In 2005 Mr G was sentenced, for a number of non-terrorist offences, to detention in a young offender institution for a period of three years six months. On 22 March 2006 he was released on automatic conditional licence, but on 26 March 2006 he was re-arrested under section 136 of the Mental Health Act 1983 and returned to detention. His licence was subsequently revoked. On 25 October 2006, he was transferred to an adult prison. During his time in detention, Mr G had converted to Islam.
8. In the current proceedings against Mr G, the prosecution case is that, while in custody, he collected and recorded information likely to be of use to a person committing or preparing an act of terrorism. The items which he collected include plans for making bombs, including a diagram of a pipe bomb, and various textbooks containing information relating to explosives. He made notes on how explosives could be manufactured and used. No explosives or viable explosive device or part of any explosive device were recovered from him. The Crown further alleges that Mr G drew a map of the Territorial Army Centre in Chesterfield and identified the location of the armoury there. He wrote down plans to attack the Centre and to kidnap the caretaker. Extremist material containing his observations on the waging of Jihad in Great Britain was also recovered from him.
9. The items in question were recovered during repeated searches of Mr Gs cell accommodation at HMYOI Stoke Heath on 4 April and 10 August 2006, and at HMP Featherstone on 30 December 2006 and 23 January 2007.
10. Mr G was released from prison on 2 February 2007, but was immediately arrested and interviewed by police officers under caution in relation to these various items. In summary, the explanation which Mr G gave for collecting and recording the information was that he wanted to wind up the prison staff because they were provoking him. He said, so I wanted to wind them up and I know how this terrorism stuff really gets on their nerves ". He said that he left the material in his cell so that it could be found.
11. After the second interview it became apparent to the interviewing officers that Mr G was mentally ill and was not fit to be questioned further.
12. On 7 February 2007 Mr G was diagnosed as suffering from a paranoid psychosis or schizophrenia and on 12 June he was transferred to Ashworth Hospital under the provisions of the Mental Health Act 1983.
13. In a psychiatric report dated 7 November 2007, Dr Qurashi, a consultant forensic psychiatrist, concluded that Mr G is suffering from a severe and enduring mental illness, viz paranoid schizophrenia, which had not previously been diagnosed or treated. The Crown accepts that, in Dr Qurashis opinion, Mr G collected and recorded the information in question as a direct consequence of his illness. In his report Dr Qurashi said this:
In summary [Gs] account of the various documents found in his cell whilst on remand was to wind up prison officers. He has consistently reported that he had no intention of committing acts of terrorism. When asked why he felt the need to antagonise prison officers he believes that [they] were whispering about him. This is highly likely to be a psychotic experience, namely an auditory hallucination.
14. Dr L P Chesterman prepared a further psychiatric report dated 20 March 2008 at the request of the Crown Prosecution Service. It included the following passage:
It would of course be a matter for a jury to determine [Gs] intent. Whilst the presence of mental illness may be relevant to [Gs] motivation for committing the alleged index offences, his mental illness would not have prevented him forming the necessary intent nor does Dr Qurashi express such an opinion.
15. On 18 January 2008 Calvert-Smith J ordered a preparatory hearing under the Criminal Procedure and Investigations Act 1996 to resolve whether evidence about Mr Gs mental illness, and his motivations in light of it, was capable of amounting in law to a defence under section 58(3) of the 2000 Act. At the preparatory hearing on 8 February 2008, Pitchford J held that Mr G had no defence of reasonable excuse under section 58(3) and granted leave to appeal.
16. Five days later, on 13 February 2008, the Court of Appeal (Lord Phillips of Worth Matravers LCJ, Owen and Bean JJ) gave judgment in two appeals which are relevant for present purposes. In R v Zafar  2 WLR 1013, the Court dealt with the interpretation of section 57 of the 2000 Act, while in R v K  2 WLR 1026, the Court considered, first, the nature of the documents which fall within the section and, secondly, the scope of the defence of reasonable excuse under section 58(3).
17. As to the nature of the documents which fall within section 58(1), the Court said this in R v K  2 WLR 1026, 1031, paras 13 and 14:
A document or record will only fall within section 58 if it is of a kind that is likely to provide practical assistance to a person committing or preparing an act of terrorism. A document that simply encourages the commission of acts of terrorism does not fall within section 58.
14. The provisions of section 2 of the 2006 Act, and in particular those of section 2(5), require the jury to have regard to surrounding circumstances when deciding whether a publication is likely to be useful in the commission or preparation of acts of terrorism. Contrary to [counsel for the Crowns] submissions, we do not consider that the same is true of section 58 of the 2000 Act. The natural meaning of that section requires that a document or record that infringes it must contain information of such a nature as to raise a reasonable suspicion that it is intended to be used to assist in the preparation or commission of an act of terrorism. It must be information that calls for an explanation. Thus the section places on the person possessing it the obligation to provide a reasonable excuse. Extrinsic evidence may be adduced to explain the nature of the information. Thus had the defendant in R v Rowe  QB 975 been charged under section 58, evidence could have been admitted as to the nature of the substitution code possessed by the defendant. What is not legitimate under section 58 is to seek to demonstrate, by reference to extrinsic evidence, that a document, innocuous on its face, is intended to be used for the purpose of committing or preparing a terrorist act.
18. The Court then went on to deal, at p 1031, para 15, with the scope of the defence of reasonable excuse in section 58(3):
As for the nature of a reasonable excuse', it seems to us that this is simply an explanation that the document or record is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism. It matters not that that other purpose may infringe some other provision of the criminal or civil law.
19. On 2 April 2008 a differently constituted Court of Appeal (Rix LJ, Henriques J and Sir Richard Curtis) heard Mr Gs appeal and allowed it, but reserved judgment. On 29 April 2008 the Court held that it was bound by the decision in R v K concerning the defence of reasonable excuse, and so it would be a reasonable excuse if Mr G had collected the material to wind up the officers. The court, however, certified that three questions of law of general public importance arose. On 11 June 2008 the Appellate Committee granted the Crown leave to appeal.
20. We turn now to explain the circumstances in which the Crowns appeal in Mr Js case comes before the House.
The Facts of Js Case
21. Mr J is at present in custody awaiting trial at the Crown Court sitting at Birmingham. In terms of the amended indictment, Mr J faces six counts. On the first count he is charged with possessing articles for a purpose connected with the instigation, preparation or commission of an act of terrorism, contrary to section 57(1) of the 2000 Act. The particulars of that offence are given in these terms:
[J], on the 15th day of December 2006, had in his possession an iPod portable digital media player containing an electronic torrent file entitled Military Training.torrent', a digital file (numbered 804) containing a document entitled How Can I Train Myself for Jihad? and a digital file (numbered 1012) containing a document entitled 39 Ways to Serve and Participate in Jihad', a CD-ROM (identified as exhibit TAS/23, disk number 61) containing a digital file (identified as folder 14) entitled the Al Qa'eda Training Manual and a Sony Ericsson mobile telephone containing a digital file containing a video recording of West Midlands Police Headquarters in circumstances which give rise to a reasonable suspicion that his possession of them was for a purpose connected with the commission, preparation or instigation of an act of terrorism.
The five other counts are of possessing records containing information of a kind likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58 of the 2000 Act. These refer to the five items covered by the first count: the Military Training.torrent file (count 2), the digital file entitled Al Qa'eda Training Manual (count 3), the digital file containing a document entitled How Can I Train Myself for Jihad? (count 4), the digital file containing a document entitled 39 ways to Serve and Participate in Jihad (count 5) and the digital video file containing moving images of the West Midlands Police Headquarters.
22. The prosecution case against Mr J is that, when arrested on 15 December 2006, he was in possession of a large quantity of digitally stored information, contained on his iPod digital music player, telephone, laptop computer and two collections of digital disks. A considerable quantity was of an extreme Islamist nature. Some of it was clearly of a kind likely to be useful to a terrorist in that it included the electronic key", viz the torrent file, to a large library of bomb-making, guerrilla, poisons, chemical weapons, improvised weapons and other manuals, some with an express terrorist (as opposed to simply military) purpose, such as the Terrorists Handbook and the disk containing the copy of the Al Qa'eda Training Manual.
23. In count 1 the prosecution case is that Mr J possessed the specified articles in circumstances which give rise to a reasonable suspicion that his possession of them was for a purpose connected with the commission, preparation or instigation of an act of terrorism. In the remaining counts the prosecution case is that Mr J had certain articles in his possession and they contained information that was of a kind likely to be useful to a person committing or preparing an act of terrorism.
24. In a defence statement dated 5 September 2007 Mr J set out the nature of his defence to each of the charges. He dealt specifically with the individual items under counts 2 to 6. So far as count 1 is concerned, he said that the presence of the files and video was not for any purpose connected with the commission, preparation or instigation of any act of terrorism held [sic] by himself or anyone else.
25. In respect of the Military Training.torrent file (count 2) Mr J said that he acquired it as a result of an internet search which he conducted in respect of military training, when speculating on alternative careers which he might pursue in the future. The search was conducted out of curiosity to learn the nature of the training he would have to undertake were he to return to his home country, the Gambia, and undertake a military career there. He went on to say that, when he downloaded the file, he was unfamiliar with the procedure for opening it and so he was never able to open it. He was therefore never aware of the exact content of the torrent file or the contents of the material to which it might afford access. For the avoidance of doubt, he denied that the file contained information likely to be useful to a terrorist, he was unaware of his possession of any information likely to be useful to a terrorist and he asserted that he had a reasonable excuse for possession of the file.
26. In respect of the digital file entitled Al Qa'eda Training Manual (count 3), Mr J said that on a number of occasions he purchased, or was given, material relating to Islamic religious, historic and current affairs. It was a tenet of his Islamic belief that followers were obliged to learn about their faith. The DVD was one such item and at the time of his arrest Mr J did not know its complete content and was not aware of a file entitled Al Qa'eda Training Manual or of its content. In this case also he stated for the avoidance of doubt that he was unaware of possessing any information likely to be useful to a terrorist and asserted he had a reasonable excuse for possessing the file.
27. So far as the digital file containing a document entitled How Can I Train Myself for Jihad? (count 4) is concerned, Mr J made the same kind of explanation as in relation to count 3, with the addition of a reference to a tenet of Islamic belief that all Muslims are obliged to participate in Jihad. The file was obtained pursuant to that obligation and contained material of a theological nature relating to Jihad. He repeated the same points, for the avoidance of doubt, as in respect of count 2.
28. The nature of his defence to count 5 relating to the document entitled 39 ways to Serve and Participate in Jihad was the same as the nature of his defence to count 4.
29. In relation to count 6, he had acquired a mobile phone with a video facility. Shortly afterwards, he was travelling on a bus and decided to test the phones capability and so activated its video function. There were no signs to indicate that videoing was prohibited in the area and, indeed, the actual images captured were immaterial to him. For the avoidance of doubt, he denied that the file contained information likely to be useful to a terrorist, he was unaware of his possession of any information likely to be useful to a terrorist, he had a reasonable excuse for the creation and possession of the video and he had no way of knowing that he was committing an offence by videoing what he captured.
30. When interviewed by the police, Mr J answered No comment to all questions which were put to him.
31. On 12 December 2007 Mr J pleaded not guilty to all the counts on the indictment.
32. On 1 February 2008 Mr J invited the trial judge to give an indication as to sentence. The judge agreed, but allowed an adjournment for him to give instructions in person to his solicitors and counsel as to whether or not to enter guilty pleas.
33. On 7 February 2008 Mr J pleaded guilty to counts 2, 3, 4 and 6. Counts 1 and 5 were not disposed of, but the prosecution indicated that it proposed in due course to offer no evidence on count 1 and to invite the court to order count 5 to lie on the file on the usual terms. Sentence was adjourned until 25 February.
34. In the meantime, as already explained, on 13 February, the Court of Appeal handed down its judgment in R v K, dealing with the defence of reasonable excuse under section 58(3). Basing himself on that decision, Mr J applied to vacate his guilty pleas on the basis that he had received erroneous legal advice as to the ambit of the section 58 offence, particularly (but not exclusively) in relation to the defence of reasonable excuse. On 25 February the judge heard the application but reserved his ruling and directed that an affidavit be filed in respect of these matters. On 10 March an affidavit made by Mr J was filed and on 19 March the judge ruled that Mr J could vacate his guilty pleas. He directed that a preparatory hearing take place; Mr J was arraigned and pleaded not guilty to each of the four counts to which he had previously pleaded guilty.
35. At the invitation of the Crown, Judge Chapman ruled on a question of law formulated in these terms, under reference to R v K:
For the purposes of the counts contrary to section 58 of the Terrorism Act 2000, in the event that the defendant raises evidentially in the trial that he had a reasonable excuse for his possession of one or more of the records of information referred to in the indictment, is it necessary for the prosecution to prove that his possession was for a purpose to assist in the preparation or commission of an act of terrorism' ?
The judge answered the question in the affirmative and refused the Crown leave to appeal. He explained his answer in this way:
I regard myself as bound by the decision of the Court of Appeal in R v K and it seems to me that the only way I can interpret that, because it is plain and simple language, is that the effect is that the Crown must prove that possession was for a purpose to assist in the preparation or commission of an act of terrorism. It is a conclusion that has resonance in common sense. Otherwise, if the Crowns argument is correct, whilst it may be possible for someone to demonstrate a reasonable excuse to (sic) possession of such items on the basis of academic or political research, counter-espionage, law enforcement, it certainly would not cover in the ordinary way curiosity, and it might have this consequence that people engaged in non-terrorist activities, who were in possession of articles which were likely to be useful to a person committing or preparing an act of terrorism, would be guilty of a terrorist offence. So we have the argument that a safe cracker reading his handbook on how to handle gelignite would be caught by a terrorist provision. The Court of Appeal seemed to be making it plain that a reasonable excuse for the purposes of this section of this Act encompasses not just the kind of excuse which would be a reasonable way of dealing with possession of an offensive weapon but extends to other activities which, of themselves, may infringe either criminal or civil law. The narrowing of the kind of documents caught by section 58 is no doubt designed to exclude things in ordinary circulation like maps, timetables, elementary books on chemistry, mobile phones, use of the internet, that sort of thing which might or could be of use to someone preparing to commit an act of terrorism, whether or not that was the intention. And the narrowing of the definition at paragraph 13 in the case of R v K seems to me not only common sense but what the Parliament must have intended.