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)

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36.  The Crown’s application for leave to appeal was referred for consideration by the full Court of Appeal. On 1 May 2008 the full Court (Sir Igor Judge, President of the Queen’s Bench Division, Aikens and Swift JJ) granted leave to appeal against the judge’s ruling, on the basis that he had erred in concluding that he was bound by the decision in R v K. The Court then proceeded to hear and dismiss the appeal. In essence, the Court held that, having regard to the decision of the differently constituted Court of Appeal in R v G two days before, by which the Court was bound, it was not open to the Crown to argue that the observations of the Court in R v K on the ambit of the defence of reasonable excuse in section 58(3) were not part of the ratio decidendi.

37.  The Court granted a certificate in similar terms to the certificate in R v G and on 11 June 2008 the Appellate Committee granted leave to appeal. The three points of law of general public importance certified by the Court of Appeal are:

a) What are the ingredients of the offence contained in section 58(1) of the Terrorism Act 2000?

b) What is the scope of the defence contained in section 58(3) of the Terrorism Act 2000?

c) What is the relationship between section 57 and section 58 of the Terrorism Act 2000?

38.  We find it convenient to address the issues in a slightly different order. We start with the ingredients of the offence contained in section 58(1) of the 2000 Act, but leave over consideration of the defence in section 58(3). We shall then deal with the ingredients of the offence in section 57(1). These two steps pave the way for considering the relationship between the two sections. After that, we shall come to the defence in section 58(3) and, in that connection, first consider the defence in section 57(2).

The Section 58 Offence

39.  As the formulation of the first point of law itself suggests, the ingredients of the offence created by section 58(1) must be found by interpreting that subsection, which creates the offence. On the one hand, it tells anyone who is interested what he is not permitted to do; on the other, it tells the prosecution what it must prove if someone is to be convicted of the offence. If the Crown proves the elements in subsection (1) beyond a reasonable doubt, then it is entitled to ask for a conviction - unless the defendant successfully raises a defence under subsection (3).

40.  Putting flesh on these bones, a person can commit an offence under subsection (1) in either of two ways. First, he commits an offence if 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. There are allegations to that effect against both Mr G and Mr J. Secondly, he commits an offence if he possesses a document or record containing information of that kind. There is an allegation to that effect against Mr J.

41.  Section 58 is the current embodiment of a provision which was first found in legislation applying to Northern Ireland and was later extended to Great Britain by the Criminal Justice and Public Order Act 1994. Section 57 embodies a provision with a similar history. Lord Lloyd of Berwick was asked to review the terrorism legislation and his report, Inquiry into Legislation against Terrorism, was published in 1996. Lord Lloyd explained the thinking behind the provision that became section 57 in paras 14.4 and 14.5 of his report:

“14.4 The purpose of the provision is to allow action to be taken against a person who is found in possession of articles which, though perhaps commonplace in normal circumstances, are well known to be used in the manufacture of bombs. It is, of course, not the possession of the items themselves which constitutes the offence, but possession in such circumstances as to give rise to a reasonable suspicion of their connection with terrorism.

14.5 The need for the police to intervene against the terrorist at an early stage, before he has an opportunity to plant a bomb, is well recognised. Given that terrorist bombs are usually home-made, it is quite possible that, during a search of premises occupied by a suspected terrorist, the police will find materials such as timers or chemicals in highly incriminating circumstances without also finding explosives or other prohibited materials. If other evidence exists, he might be charged with conspiracy to cause explosions, or with the new offence of being concerned in the preparation of a terrorist act. Otherwise I see no reason why the person should not be required to account to the court for his possession of the articles.”

Lord Lloyd went on to give his views on the provision which became section 58 at para 14.8:

“Its purpose is similar to that of the offence of possession described above and the case in favour of retaining the power is very much the same. It is designed to catch possession of targeting lists and similar information, which terrorists are known to collect and use.”

42.  Obviously, on one reading, section 58(1) could cover a multitude of records of everyday common or garden information, which might actually be useful to a person who was preparing to carry out an act of terrorism - e g a Yellow Pages directory listing outlets where he could buy fertiliser and other chemicals for making into a bomb, a timetable from which he could discover the times of trains to take him to the city where he was going to plant his bomb, or an A to Z directory of that city which he could use to find his way to the target. But, rightly, appearing for the Crown, Mr Perry QC repudiated any such interpretation. Parliament cannot have intended to criminalise the possession of information of a kind which is useful to people for all sorts of everyday purposes and which many members of the public regularly obtain or use, simply because that information could also be useful to someone who was preparing an act of terrorism.

43.  Indeed, it is clear from what Lord Lloyd said in his report that the aim was to catch the possession of information which would typically be of use to terrorists, as opposed to ordinary members of the population. So, to fall within the section, the information must, of its very nature, be designed to provide practical assistance to a person committing or preparing an act or terrorism. Because that is its nature, section 58(3) requires someone who collects, records or possesses the information to show that he had a reasonable excuse for doing so. The information is such as “calls for an explanation", as Lord Phillips of Worth Matravers LCJ, said in R v K [2008] 2 WLR 1026, 1031, para 14. Of course, it is not necessary that the information should be useful only to a person committing etc an act of terrorism. For instance, information on where to obtain explosives is capable of falling within section 58(1), even though an ordinary crook planning a bank robbery might also find it useful.

44.  The role of extrinsic evidence is limited. It can be used to explain to the jury the significance of something in the document, say, a chemical formula, in connection with the planning of an explosion. It can also be used to explain the true nature of the information in a document which has been prepared so as to appear innocuous but whose actual nature and contents are concealed by the use of some sort of code or equivalent device. But, since the document must contain information which is, of its very nature, likely to be useful to a potential terrorist, evidence cannot be led with the aim of showing that a document, such as a timetable, containing everyday information, should be treated as falling within section 58(1). That evidence will be relevant to a charge under section 57(1), but not to a charge under section 58(1).

45.  Interpreted in that way, section 58(1) would cover, for instance, a training manual about making or planting bombs or explosives, or a document containing information about how to get unauthorised entry to military establishments, government offices etc. It would also cover information, whether in the form of an electronic key or otherwise, which enabled a potential terrorist to obtain access to such information. Parliament has made it an offence to collect, record or possess such material, unless the defendant can show that he has a reasonable excuse for doing so.

46.  To be guilty of the section 58 offence, the defendant must collect or make a record of the information in question, or must possess a document or record containing such information. So far as possession is concerned, it is noticeable that section 58 does not contain any equivalent of section 57(3), which allows the court to assume that the defendant was in possession of the articles in question in certain circumstances. The obvious inference is that, under section 58(1), the Crown must prove beyond a reasonable doubt that the defendant knew that he had the document or record and that he had control of it. So, in order to prove its case under section 58(1), the Crown must satisfy the jury beyond reasonable doubt, for instance, either that a defendant who owned a flat was aware that her boyfriend had brought a document of the relevant kind into the flat, or else that, despite her claim that he had kept it locked away beyond her control, she not only knew that the document was in the flat, but she also had control over it. If the Crown fails to establish these matters, the defendant does not rely on any defence under subsection (3): she is entitled to be acquitted simply because the Crown has not proved her possession of the document, which is one of the essential elements of the section 58(1) offence.

47.  Is it a requirement for conviction of an offence under section 58(1)(b) that the defendant not only possessed the document but was aware of the nature of the information which it contained? In our view, it is. The immediate setting of section 58(1)(b) is important. Section 58(1)(a) makes it an offence to collect or make a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism. That paragraph envisages the defendant collecting or recording that particular kind of information, rather than collecting or recording a general mass of information which happens to contain information of the kind in question. But in order to collect or record that particular kind of information, the defendant must know what he is looking for. So knowledge of the nature of the information is certainly a necessary element in the offence in para (a). Paragraph (b) deals with someone who possesses a document or record containing information of the relevant kind, which he or someone else has collected or recorded. Given that knowledge of the nature of the material is required where the offence is committed in the manner specified in para (a), it would be very strange if similar knowledge were not also required for commission of the offence in the manner specified in para (b). We are therefore satisfied that the Crown must prove that the defendant was aware of the kind of information which was in the document or record which he possessed. That conclusion is in line with the approach of the House in Sweet v Parsley [1970] AC 132.

48.  This does not mean, of course, that the Crown has to show that the defendant knew everything that was in the document or record. It is enough if he knew the nature of the material which it contains. That may often be apparent from the title of the document or from even a cursory glance at its contents. Nor can a defendant keep a document in his possession and claim ignorance of its contents by deliberately choosing not to inquire into them. If the document is hidden in some way, this will often be a basis on which the jury can be asked to infer that the defendant was aware of the nature of its contents.

49.  Section 58(1) focuses on the nature of the information which the defendant collects, records or possesses, rather than on the circumstances in which he does so. The description of the information is given in general terms: information will meet that description, irrespective of who might commit or prepare an act of terrorism and so be likely to find the information useful. It could be a third party or it could indeed be the defendant himself. So the offence is apt to catch someone who gathers the information and stores it with a view to passing it on to someone else who is preparing an act of terrorism. But, equally, it will cover someone who does these things with the intention of using the information himself to prepare an act of terrorism. Or else, the accused may have gathered and stored the information without having any clear idea of what he intends to do with it. None of this matters, since the legislation makes it an offence simply to collect, record or possess information of this kind. Parliament must have proceeded on the view that, in fighting something as dangerous and insidious as acts of terrorism, the law was justified in intervening to prevent these steps being taken, even if events were at an early stage or if the defendant’s actual intention could not be established. At the same time, Parliament enacted section 58(3), which introduced the necessary element of balance by giving the accused a defence if, with the benefit of section 118, he proves that he had a reasonable excuse for doing what he did.

50.  To summarise: in order to obtain a conviction under, say, section 58(1)(b), the Crown must prove beyond reasonable doubt that the defendant (1) had control of a record which contained information that was likely to provide practical assistance to a person committing or preparing an act of terrorism, (2) knew that he had the record, and (3) knew the kind of information which it contained. If the Crown establishes all three elements, then it has proved its case against the defendant and he falls to be convicted - unless he establishes a defence under subsection (3).

The Section 57 Offence

51.  Section 57 of the 2000 Act derives from section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989. The effect of that provision was considered by Lord Hope of Craighead in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326. What he said is relevant to the interpretation of section 57, even though section 57 is different from section 16A in certain material respects.

52.  So far as section 57 itself is concerned, the elements of the offence are to be found in subsection (1). It is immediately obvious that the section covers the possession of far more things than could ever fall within the scope of section 58. While section 58 is concerned only with the possession of documents or records containing information, section 57 extends to the possession of any “article". This includes a substance and any other thing: section 121.

53.  The first thing that the Crown has to establish under section 57(1) is that the defendant possessed the article in question. So the Crown must prove both that the defendant knew he had the article and that he had control of it. But, in the case of section 57, subsection (3) contains a provision which allows the court to assume that the defendant was in possession of the article in question if it was on any premises at the same time as the defendant or was on premises of which the defendant was the occupier or which he habitually used otherwise than as a member of the public. The court is not, however, able to make that assumption if the defendant adduces evidence to show that he did not know of the presence of the article on the premises or that he had no control over it. In that event, the court is to treat what that evidence contains as proved, unless the prosecution disproves it beyond reasonable doubt. See section 118(3)-(5).

54.  Next, and crucially, the Crown must prove beyond reasonable doubt that the circumstances in which the defendant possessed the article gave rise to a reasonable suspicion that his possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism. So, in contrast to section 58(1), the circumstances of the defendant’s possession form one of the crucial elements of the section 57(1) offence.

55.  It is unusual, but not unprecedented, for Parliament to create an offence of this kind, based on a reasonable suspicion as to the purpose behind a defendant’s possession. Section 57(1) is presumably modelled on section 4(1) of the Explosive Substances Act 1883, which provides:

“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of felony, and, on conviction, shall be liable to penal servitude for a term not exceeding fourteen years, or to imprisonment for a term not exceeding two years, and the explosive substance shall be forfeited.”

Section 9 includes within the definition of “explosive substance", for example, apparatus used, or intended to be used, with any explosive substance. So the section would apply, for instance, to a timer. Under section 4(1) the Crown has to prove that the circumstances of the defendant’s possession or control of an explosive substance are such as to give rise to a reasonable suspicion that he does not have it for a lawful object. In this context, “object” is synonymous with “purpose": R v Berry [1985] AC 246, 254D-E. It is not necessary for the Crown to go further and to prove what the accused’s unlawful object was - which might well be impossible to establish. The defendant is then given a defence if he can show that, despite appearances, he actually had the substance in his possession or under his control for a lawful object. Similarly, under section 57(1) of the 2000 Act, the Crown does not need to prove what the accused’s purpose connected with the commission, preparation or instigation of an act of terrorism actually was - something which might well be impossible to prove. It is enough if the Crown satisfies the court or jury, beyond reasonable doubt, that the circumstances give rise to a reasonable suspicion that the defendant’s possession was for the relevant purpose. The defendant is then given a defence under subsection (2).

56.  Most people have no lawful reason for having an explosive as such. On the other hand, they may have a perfectly good reason for having a timer. So, under section 4(1) of the 1883 Act, in practice, in the case of a timer, more is likely to be required to justify the reasonable suspicion that the defendant’s possession was not for a lawful object than in the case of an explosive as such. Cf the reasoning of Lord Taylor of Gosforth LCJ on the proof of mens rea in R v Berry (No 3) [1995] 1 WLR 1, 13 B-C. The same will apply in the case of, say, a bag of fertiliser under section 57(1) of the 2000 Act, since many people have a perfectly good reason for having fertiliser. As Lord Hope of Craighead said of the predecessor of section 57(1) in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 387B-C, “It should not be thought that proof to this standard will be a formality.”

The overlap between Section 57(1) and Section 58(1)

57.  Obviously, the scope of section 57 is different from the scope of section 58 in a number of ways. First, section 57 applies only to possession, while section 58 applies also to collecting or making a record. Secondly, section 57 applies to the possession of any “article", widely defined. By contrast, section 58 applies to the collection of information of a certain kind and to the possession of a “document or record” containing that information.

58.  Thirdly, precisely because section 57(1) covers any “article", the section only bites on the defendant’s possession of the article in certain circumstances, viz “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.” It is not the possession of the article as such which is criminal, but its possession in those particular circumstances. By contrast, section 58 is directed at information of a particular kind, viz, “information of a kind likely to be useful to a person committing or preparing an act of terrorism.” So, while section 57 focuses on the circumstances of the defendant’s possession of the article, section 58 focuses on the nature of the information which the defendant collects, records or possesses in a document or record. Subject to the defence in section 58(3), the circumstances in which the defendant did these things are irrelevant. So, unless it amounts to a reasonable excuse under subsection (3), his purpose in doing them is irrelevant. In particular, there is nothing in the terms of section 58(1) that requires the Crown to show that the defendant had a terrorist purpose for doing what he did.

59.  The definition of “article” in section 121 of the 2000 Act is wide enough to cover a document or record. And indeed, after the Act came into force, the Crown soon adopted the practice of charging defendants with possession of a document or record, contrary to section 57(1) or, alternatively, contrary to section 58(1). In R v M [2007] EWCA 298, however, the Court of Appeal held that documents or records to which section 58 applied could not fall within the differently drawn terms of section 57, since

“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.”

The point came before the Court of Appeal again in R v Rowe [2007] QB 975. The court held that, because certain assumptions made by the court in R v M had been wrong, it need not follow that decision. The court then went on to conclude that the decision in R v M had been wrong. Lord Phillips put the point in this way, at p 985, paras 34-36:

“34. There is undoubtedly an overlap between section 57 and 58, but it is not correct to suggest that if documents and records constitute articles for the purpose of section 57, section 58 is almost superfluous. Collecting information, which falls within section 58 alone, may well not involve making a record of the information. Equally a person who possesses information likely to be useful to a person committing or preparing an act of terrorism may well not be in possession of it for a purpose connected with the commission, preparation or instigation of an act of terrorism.

35. Sections 57 and 58 are indeed dealing with different aspects of activities relating to terrorism. Section 57 is dealing with possessing articles for the purpose of terrorist acts. Section 58 is dealing with collecting or holding information that is of a kind likely to be useful to those involved in acts of terrorism. Section 57 includes a specific intention, section 58 does not.

36. These differences between the two sections are rational features of a statute whose aims include the prohibition of different types of support for and involvement, both direct and indirect, in terrorism. There is no basis for the conclusion that Parliament intended to have a completely separate regime for documents and records from that which applies to other articles.”

On this basis, the Court of Appeal held that the possession of a document or record could, in an appropriate case, fall within section 57 as well as section 58. The decision in Rowe was not challenged in the hearing before the House. It is plainly correct for the reasons which Lord Phillips gave.

The operation of the defences under section 58(3) and under section 57(2)

60.  We turn now to consider the operation of the defence in section 58(3). At para 50 above we summarised the elements of the offence created by section 58(1). It is only where the prosecution has already proved all these elements, and so is otherwise entitled to a conviction, that the defendant needs to rely on the defence in section 58(3) in order to avoid conviction. If, applying section 58(3), the jury accept that the defendant had a reasonable excuse for possessing the material, then, because of that additional factor in the circumstances, he is entitled to be acquitted, even though it remains the case that the Crown has proved all the necessary elements of the offence in terms of section 58(1). It necessarily follows that, if the jury do not accept the defence put forward by the defendant under section 58(3), the defence fails and their duty will be to convict him of the offence under section 58(1).

61.  Mr McNulty contested that approach. Even though the defences in section 57(2) and section 58(3) are expressed in very different terms, they are similar in one particular respect, viz, that section 118(2) applies to both of them. For that reason Mr McNulty relied on authority dealing with section 57(2) as support for his submission that section 118(2) applied in relation to section 58(3) so as to produce the result for which he contended. It is therefore convenient to look first at section 57(2).

62.  As already indicated in para 55, the need for the defence in section 57(2) only arises when the Crown has proved all the elements of the offence in section 57(1). Under subsection (2), it is a defence for the defendant 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. So the jury must acquit the defendant, if they find this defence proved, even though they are simultaneously satisfied beyond a reasonable doubt that the circumstances of his possession give rise to a reasonable suspicion that it was for a purpose connected with the commission, preparation or instigation of an act of terrorism. In other words, the defendant has a defence when, despite any reasonable suspicion to the contrary, his possession of the article in question was not in fact for a purpose connected with the commission etc of an act of terrorism.

 
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