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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63.  Suppose that the Crown leads evidence to prove all the elements in section 57(1) beyond reasonable doubt. Then, if the defendant adduces sufficient evidence to entitle the court or jury to find that the defendant did not have the article for a purpose connected with the commission etc of an act of terrorism, they are to assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that the defence is not satisfied. The section gives statutory expression to the familiar concept of an evidential burden on a defendant to raise a defence, which the Crown must then disprove beyond reasonable doubt.

64.  Mr McNulty referred, however, to the way in which the operation of sections 57(2) and 118(2) had been described in R v Zafar [2008] 2 WLR 1013 as support for the proposition that, when there was evidence raising a defence under subsection (2), it was not enough for the Crown to prove the elements in subsection (1). The Crown had, in addition, to prove beyond reasonable doubt that the defendant’s possession of the relevant article or articles was for a purpose connected with the commission etc of an act of terrorism. Mutatis mutandis, Mr McNulty submitted, the same should apply to section 58(3).

65.  The facts of Zafar were complex, but, essentially, the young defendants were charged under section 57(1) with possessing computer disks and hard drives containing extreme political and religious material which, the Crown alleged, were part of a settled plan to commit a terrorist act or acts in Pakistan. It is not clear exactly what defence the defendants advanced under section 57(2). The recorder directed the jury, inter alia, however, that, in the case of each of the defendants, the Crown had to prove:

“that his possession of the article or articles in question was for a purpose connected with committing, preparing for or instigating, that is to say, bringing about or making happen, of an act of terrorism….”

Some of the defendants were convicted and appealed. The essential issue in the appeal appears to have been as to the effect of the words “connected with” in section 57(1). The argument for the defence was that, unless the words were given a restrictive interpretation, the ambit of the section would be too uncertain to satisfy the requirements of legality.

66.  That particular issue, as to the effect of the words “connected with", does not arise in the present appeals. But, in the course of their judgment, given by Lord Phillips of Worth Matravers LCJ, the Court of Appeal quoted section 57(1) and (2) and continued, [2008] 2 WLR 1013, 1018, paras 15 and 16:

“The effect of section 118 of the 2000 Act is that, if a defendant adduces evidence that raises an issue as to whether his possession of the article in question was for a purpose connected with the commission, preparation or instigation of an act of terrorism, the burden shifts to the prosecution of proving beyond reasonable doubt that the possession of the article was held for such purpose.

16. The Crown accepted in this case that, by the end of the evidence, each of the defendants had adduced evidence that sufficed to raise the issue as to whether his possession of the relevant article or articles was for a purpose connected with the commission, preparation or instigation of an act of terrorism. This thus became a matter that the Crown had to prove beyond reasonable doubt.”

67.  This is the passage on which Mr McNulty relied. On its face, it is indeed open to the interpretation that, if a defendant adduces evidence sufficient to raise a defence under section 57(2), then, in order to obtain a conviction, the Crown must prove beyond reasonable doubt that the defendant’s possession of the article was for a purpose connected with the commission etc of an act of terrorism. That would, however, be to misapply section 118(2) and to mix up what the Crown has to prove in order to establish the offence and what the Crown has to prove in order to rebut the defence. So, if the passage is to be interpreted as Mr McNulty contended, then in our view it should not be followed, since it is inconsistent with the clear meaning of section 57(2).

68.  Suppose a defendant is charged, under section 57(1), with the possession of a quantity of fertiliser in circumstances giving rise to a reasonable suspicion that his possession was for a purpose in connection with the preparation of a bomb to be used in an act of terrorism. Suppose also that the Crown has proved all the necessary elements of this offence beyond a reasonable doubt. But the defendant has adduced evidence to suggest that he possessed the fertiliser for a non-terrorist purpose, namely, to improve the quality of the soil in his garden. By virtue of section 118(2), the jury are to assume that this defence under section 57(2) is satisfied, i e made out, unless the prosecution proves beyond reasonable doubt that the defence is not satisfied. In other words, the prosecution must satisfy the jury beyond reasonable doubt - for instance, by leading evidence that the garden had been consistently neglected, that there were no gardening tools in the house, and that the quantity of fertiliser was more than would be required for the garden in question - that the defendant did not possess the fertiliser for gardening purposes. If the prosecution succeeds in proving this, the jury will reject the defendant’s explanation for his possession of the fertiliser and the position will be as if that defence had never been advanced. So the Crown will have established the defendant’s guilt of the section 57(1) offence by proving beyond reasonable doubt that he possessed the fertiliser in circumstances giving rise to a reasonable suspicion that his possession was for a purpose connected with the commission etc of an act of terrorism. There is no need whatever for the Crown to go further - as Mr McNulty would contend - and prove, beyond reasonable doubt, that the defendant actually possessed the fertiliser for a purpose connected with the commission etc of an act of terrorism. That would be to impose on the Crown a requirement that is not to be found in section 57(1).

69.  Exactly the same reasoning applies to section 118(2) and to the defence under section 58(3). Suppose, for instance, the Crown proves beyond a reasonable doubt that, when a defendant was stopped and searched, a disk containing the Al Qa'eda Training Manual was found in his pocket and that he knew what was on the disk. The defendant adduces evidence to the effect that he had found it on a train only a few minutes before and was on his way to hand it in to the nearest police station when he was stopped. Assume that this would be a reasonable excuse. The jury would have to find the defence satisfied and acquit the defendant, unless the Crown proved beyond a reasonable doubt that the defence was not satisfied - in the hypothetical example, by proving that the defendant’s story was not true and that, in fact, he was not on his way to hand in the disk when he was stopped. If the Crown proved this, then, in terms of section 118(2), it would have proved that the defence was not satisfied - in other words, that it had not been made out. The supposed defence would then vanish from the scene and the Crown would be entitled to ask for a conviction on the basis of the evidence of the defendant’s possession of the disk.

70.  It follows that section 58(1) contains all the elements which the Crown must prove, irrespective of whether or not the defendant raises a defence under section 58(3).

Scope of the defence under Section 58(3)

71.  Another strand in the respondents’ argument was based on what the Court of Appeal said about the nature of the section 58(3) defence in R v K [2008] 2 WLR 1026, 1031, at para 15, which we repeat here:

“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.”

72.  At this stage we touch on the scope of the defence under section 58(3), the second of the issues raised in the appeal. Mr Perry submitted that this passage in the Court of Appeal’s judgment was wrong. The court had, in effect, substituted for the defence of reasonable excuse which Parliament had enacted in section 58(3) a quite different defence, which was, in substance, a reproduction of the defence in section 57(2). Where Parliament had deliberately framed different defences to charges under the two sections, the courts had to respect the difference and apply the defence which Parliament had enacted for the charge in question.

73.  We accept that submission. In our view the Court of Appeal went wrong in R v K when it interpreted the defence of reasonable excuse in section 58(3) in this way. The language of sections 57(2) and 58(3) is completely different and it is neither appropriate nor possible to interpret the two provisions as if they said substantially the same thing. Had Parliament intended to provide substantially the same defence to both sections, nothing would have been easier than to use the same language.

74.  The defence in section 57(2) is crafted to suit the offence created by section 57(1). The offence arises only because of the reasonable suspicion that the defendant possesses the article for a purpose connected with the commission etc of an act of terrorism. That is why the accused is given a defence which relates to the actual purpose for which he possesses the article. So it would indeed be a defence to a section 57(1) charge for a defendant to show, for instance, that his actual purpose for having an explosive was to blow open a bank vault. He would get out of the section 57(1) charge but would have constructed a cast-iron case against himself under section 4(1) of the Explosive Substances Act 1883, which carries a maximum penalty of 14 years imprisonment.

75.  By contrast, as we have already explained, the offence under section 58(1) does not depend on the defendant having a terrorist purpose. It depends, rather, on the nature of the information which the accused collects, records or possesses. The defendant cannot change the nature of the information, but is not to be convicted if he shows that he had a reasonable excuse for collecting, recording or possessing it.

76.  A defence in terms of reasonable excuse is to be found in a whole range of provisions under the 2000 Act. And it is, of course, a familiar feature of many other offences, such as possession of an offensive weapon under section 1(1) of the Prevention of Crime Act 1953 and section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, and failure to provide a specimen of blood or urine under section 7(6) of the Road Traffic 1988. The Court of Appeal’s decision in R v K [2008] 2 WLR 1026, 1031, para 15, singles out this particular use of the defence in section 58(3) and imposes on it a construction which is utterly different from the construction which has been put on the equivalent defence in other statutes.

77.  More than that, however, the Court of Appeal’s construction robs the adjective “reasonable” in section 58(3) of all substance. Neither the judge nor the jury is left with any room to consider whether the excuse tendered by the accused for, say, his possession of the document or record is actually reasonable. Provided only that he proves that his purpose was not connected with the commission etc of an act of terrorism, the Court of Appeal give him a defence under subsection (3). Indeed they expressly affirm that it matters not that the defendant’s purpose may infringe some other provision of the criminal or civil law. Suppose, for example, that the accused had a document containing information about the security system protecting the Home Secretary’s residence. The interpretation adopted by the Court of Appeal means that, if the defendant proved that he had this document because he was planning to burgle the Home Secretary’s house and steal her jewellery, this would, by definition, be a reasonable excuse since the defendant’s purpose would not be connected with the commission etc of an act of terrorism. The same would apply if the defendant’s purpose was to murder the Home Secretary for purely personal motives. Even if the jury rightly considered that these “excuses” were outrageous rather than reasonable, in each case the judge would have to direct them that the defendant’s purpose amounted to a reasonable excuse in terms of section 58(3) and that they would have to acquit him. In our view, Parliament could not have intended section 58(3) to be interpreted or applied in that way.

78.  In the course of the hearing, counsel conjured up other, more or less fanciful, scenarios which, again, smacked more of a student moot than of real life. For example, we were asked to contemplate the case of an aspiring cracksman who attends an academy for safe-blowers, takes notes on how to make explosives, and keeps his notes in order to use the information to break open a bank vault. By its nature, the information in the notes would be capable of falling within the scope of section 58(1). The suggestion was that the apprentice cracksman would have a reasonable excuse under section 58(3) for collecting, recording and possessing the information.

79.  Of course, if accepted, the explanation would show that the accused’s purpose was not to commit an act of terrorism. But that is not the issue under section 58. Under section 58(1), the mere fact that the defendant’s purpose was not to commit an act of terrorism is neutral. What he has to show is that he had an objectively reasonable excuse for possessing something which Parliament has made it, prima facie, a crime for him to possess because of its potential utility to a terrorist. An intention to use information in connection with a bank robbery may well be an explanation of why the defendant had the information, but it cannot be a “reasonable” excuse for having it. So the accused would be guilty of the section 58(1) offence.

80.  In fact, of course, the example is unrealistic, precisely because it is stripped of all the features of a real case. For instance, we are told nothing of why the police were searching the defendant or his premises when they found the notes. As pointed out in para 43, some items which would fall within section 58(1) would also be useful to a bank robber. So the circumstances in which they are found may have a bearing on how such items are in practice regarded by the relevant authorities. If, for example, police officers came across notes relating to explosives when searching the room occupied by the defendant in a house where other men had lived before carrying out a terrorist bombing, they would probably pursue the matter on the basis that the notes contained information that was likely to be of use to someone preparing an act of terrorism. On the other hand, the police and prosecuting authorities would be unlikely to treat the same notes in that way if they were recovered in the course of a raid on premises after a tip-off that the occupiers were about to rob a bank and then to use the proceeds to help expand their drug trafficking operation. The police and, subsequently, the Crown Prosecution Service and the Director of Public Prosecutions would take all the relevant circumstances into account before deciding whether to prefer a charge under section 58(1) or, say, to use the evidence to support a charge of attempted robbery. So the chances of a real live bank robber being charged with an offence under section 58(1) and putting forward a genuine defence that he had made the notes for use in preparing a bank robbery are slim indeed. It is no accident that, in the cases to which the House was referred, the section 58(1) counts tend to be associated with counts under section 57(1) and that the section 58(1) counts relate to training manuals and other documents which are immediately suggestive of some link with terrorism.

81.  It is comparatively easy to identify examples of excuses which could never be regarded as reasonable. It is similarly easy to give examples of excuses which everyone would regard as reasonable - the person who finds the disk on the train and immediately takes it to the nearest police officer obviously has a reasonable excuse for possessing the disk; as does the site manager, in Mr Perry’s example, who mistakenly picks up plans of the layout of the Bank of England along with his newspaper. Mr Perry suggested that the defence should be construed narrowly so as to confine it to cases such as these. He pointed to R v Lennard [1973] 1 WLR 483, 487 where the Court of Appeal had indicated that only a very narrow range of circumstances could amount to a reasonable excuse for refusing to give a sample of blood or urine. But that approach is only possible because the circumstances giving rise to the offence are always essentially similar and so it is possible to envisage what could be a reasonable excuse for doing what it prohibits. By contrast, under the Prevention of Crime Act 1953 and the Criminal Law (Consolidation) (Scotland) Act 1995 the circumstances in which people may have an offensive weapon in a public place are many and various. So the courts have recognised that any decision on whether an accused had a reasonable excuse must depend on the particular circumstances of the case. For example, a male stripper dressed as a police officer, who was waiting outside for his performance to begin, was held to have a reasonable excuse for carrying a truncheon in a public place: Frame v Kennedy 2008 SCCR 382. Similarly, the circumstances which may give rise to a section 58(1) offence are many and various. So it is impossible to envisage everything that could amount to a reasonable excuse for doing what it prohibits. Ultimately, in this middle range of cases, whether or not an excuse is reasonable has to be determined in the light of the particular facts and circumstances of the individual case. Unless the judge is satisfied that no reasonable jury could regard the defendant’s excuse as reasonable, the judge must leave the matter for the jury to decide. When doing so, if appropriate, the judge may indicate factors in the particular case which the jury might find useful when considering the issue - such as the defendant’s age, his background, his associates, his way of life, the precise circumstances in which he collected or recorded the information, and the length of time for which he possessed it. Moreover, while, as we go on to explain in para 88, the fact that someone is suffering from a mental illness cannot, of itself, make an unreasonable excuse reasonable, it may nevertheless be a matter for the jury to take into account when considering whether to accept an excuse advanced by the defendant. For example, if someone says that he had found a disk on a train and had intended to take it to the police, but forgot, in deciding whether to believe the defendant and to accept the excuse as reasonable, the jury might well take into account the fact that he was suffering from a condition which tended to make for memory lapses.

82.  We would refer to two other matters that were raised at the hearing.

83.  First, there was much discussion of a hypothetical situation where the defendant downloaded and stored information falling within section 58(1) “out of curiosity". But the question as to whether he would have a reasonable excuse under section 58(3) is not one that can be answered in the abstract, without knowing exactly what the defendant did and the circumstances in which he did it. In an actual case where the issue arose, the specific facts of the case would inform the decision as to whether the defendant’s excuse for doing what he did either could or should be regarded as reasonable in the circumstances.

84.  Secondly, reference was made to the decision of the Court of Appeal in Northern Ireland in R v McLaughlin [1993] NI 28, where the defendant was convicted of a count of collecting or recording information likely to be useful to terrorists and of a count of possession of a document likely to be useful to terrorists, contrary to the provisions of the Northern Ireland (Emergency Provisions) Act 1978. The evidence showed that he had a radio scanner and a list of police radio frequencies. His defence was that he had a reasonable excuse, namely, that he kept the scanner for his own personal use and listened to police messages for his own pleasure and interest. The Court of Appeal allowed his appeal against conviction on the basis that the evidence showed on the balance of probabilities that the appellant was not recording the information to pass on to terrorists, and accordingly that he was recording it for innocent purposes and therefore had a reasonable excuse. In so far as the Court of Appeal proceeded on the basis that the mere fact that the appellant was not recording the information to pass on to terrorists necessarily meant that he had a reasonable excuse for what he did, the decision is not one which we would regard as providing sound guidance on the application of section 58(3) of the 2000 Act.

85.  Finally, in urging a generous interpretation and application of section 58(3), Mr McNulty argued forcefully that an over-zealous use of section 58 by the police and prosecuting authorities could alienate young people and exacerbate rather than reduce the threat of terrorism in this country. That may well be so. But prosecutors are very familiar with the need to exercise a wise discretion in deciding whether taking proceedings would ultimately be in the public interest. Sexual offences where both parties are under age and both consent are, perhaps, the most obvious example. In the case of sections 57 and 58, however, Parliament has enacted the safeguard that proceedings are not to be initiated without the consent of the Director of Public Prosecutions: section 117(2)(a). This can be seen as an acknowledgment that the nature of these offences is such that not all contraventions of the provisions should be prosecuted. More positively, the need for this consent should help ensure that prosecutors do indeed give due consideration to the public interest and do not embark on prosecutions in cases which do not merit it. It was not suggested that the decision to prosecute had been improper or unwise in either of the cases giving rise to these appeals.

Disposal of the Appeals

86.  Fortunately, the two appeals can be disposed of shortly in the light of this extended discussion.

87.  There is no doubt that the information which Mr G collected and recorded is of a kind likely to be useful to a person committing or preparing an act of terrorism. Indeed, Mr G collected the information precisely because it was of that kind and he knew how “this terrorism stuff” really got on the nerves of the prison officers. His reason for collecting the information was that it would wind up the prison officers who, he thought, were provoking him. On no view could a desire to wind up prison officers in this way be a reasonable excuse for collecting and recording the information.

88.  As is now apparent, Mr G was suffering from paranoid schizophrenia at the time and his actions were a direct consequence of his illness. But it is agreed that, applying the test in M'Naghtens Case (1843) 10 Cl & F 200, Mr G remained responsible for his actions. There can be no question of his illness somehow making it reasonable for him to collect and record the information when it would not be reasonable for anyone else to do so. His illness is simply a factor - and it may be an important factor - to be taken into account in deciding on the appropriate disposal.

89.  Pitchford J held that Mr G had no reasonable excuse under section 58(3). He was right to do so. As already explained, the Court of Appeal felt obliged, by the previous decision in R v K, to allow the appeal because Mr G’s purpose in collecting and recording the information was not to assist in the commission or preparation of an act of terrorism. For the reasons we have given, that interpretation of section 58(3) was wrong. The appeal must therefore be allowed and the ruling of Pitchford J restored.

90.  In the case of Mr J, Judge Chapman allowed an application that he should be allowed to vacate pleas which he had previously tendered because they had been tendered under a mistake of law. In connection with that application, the judge ruled that, contrary to the previous understanding, the decision of the Court of Appeal in R v K meant that, if Mr J raised 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, it would be necessary for the prosecution to prove that his possession was for a purpose to assist in the preparation of, or commission of, an act of terrorism.

 
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