Attorney General's Reference (No 4 of 2002); R v A
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,LORD JUSTICE LATHAM |
| Judgment Date | 21 March 2003 |
| Neutral Citation | [2003] EWCA Crim 762 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2002/6227/S4 |
| Date | 21 March 2003 |
[2003] EWCA Crim 762
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ATTORNEY GENERAL'S REFERENCE
Lord Justice Latham
Mr Justice Hunt and
Mr Justice Hedley
Case No: 2002/6227/S4
Reference by the Attorney General Under S. 36 CJA 1972
Mr D Perry & Miss M Cumberland (instructed by Crown Prosecution Service) for the Attorney General
Mr T Owen, QC & Miss A Richardson (instructed by Michael Purdon & Co) for the Appellant
On the 8 th May 2002, the acquitted person "A" appeared in the Crown Court to stand his trial on an indictment which contained three counts. The first two counts alleged offences contrary to Section 11(1) of the Terrorism Act 2000 of being a member of (Count 1) and professing to be a member of (Count 2) a proscribed organisation, namely Hamas-Izz al-din al Qassem Brigades (which we shall refer to as Hamas hereafter). The third count alleged an offence of witness intimidation, contrary to section 51 of the Criminal Justice and Public Order Act 1994. On the 21 st May 2002, at the conclusion of the prosecution evidence and following legal argument, the trial judge ruled that there was no case to answer on Counts 1 and 2 of the indictment and, subsequently on the 22 nd May 2002, a verdict of not guilty was entered in respect of each of those counts. So far as Count 3 was concerned, the prosecution asked for it to remain on the file marked "Not to be proceeded with without the leave of the Crown Court or the Court of Appeal."
Arising out of those proceedings, Her Majesty's Attorney General has referred the following two questions to this court under section 36 of the Criminal Justice Act 1972 for its opinion.
"1. What are the ingredients of an offence contrary to section 11(1) of the Terrorism Act 2000?
2. Does the defence contained in section 11(2) of the Terrorism Act 2000 impose a legal, rather than an evidential burden of proof on an accused, and if so, is such a legal burden compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in particular, with Articles 6(2) and 10 of the Convention?"
Section 11 of the Act provides as follows:
"(1) A person commits an offence if he belongs or professes to belong to a proscribed organisation.
(2) It is a defence for a person charged with an offence under subsection (1) to prove:
(a) That the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and
(b) That he has not taken part in the activities of the organisation at any time while it was proscribed."
A person charged with an offence under section 11 may be tried summarily or on indictment. The maximum penalty on conviction on indictment is 10 years imprisonment.
The facts out of which the prosecution arose were as follows. The acquitted person arrived in the United Kingdom on the 20 th April 2001 having travelled as a stowaway on a ferry from Bergen, Norway. He gave his name as "A" and his date of birth as the 17 th November 1980. He described himself as a Palestinian and claimed political asylum. He was arrested and taken to a police station, where he gave a different name and date of birth and described himself as Jordanian. On the 21 st April 2001 he was interviewed by Immigration Officers. He said that he had been born in Bethlehem and was a Palestinian; that his parents still lived in Palestine; that he had been shot and wounded by Israeli soldiers in 1995; that his brother had been shot and killed by Israeli soldiers in 1999; that he had left Palestine on the 20 th September 2000 to escape poverty, and that he had travelled to the United Kingdom via Algeria, Turkey, Germany and Norway. He was allowed temporary admission into the United Kingdom and provided with accommodation at a local authority hostel.
It became apparent to those who were at the hostel with him that he was multi-lingual. He exhibited a keen interest in any news concerning Israel particularly after 11 th September 2001. He made a number of comments which would eventually lead to his arrest. These can be summarised as follows:
i) In about October 2001, he told another resident at the hostel that he was prepared to take a bomb to a public place like an English pub if he was asked to do so by someone. He was prepared to blow it up. He also said that this was "Jihad" and if he did it did not matter. It was not clear to the other resident whether he was serious or joking.
ii) When speaking to other residents in the hostel he said on several occasions that he was a supporter and member of Hamas, he expressed joy at the 11th September bombing and said that he loved Osama Bin Laden and supported the Taliban. Some of the residents considered that he was a joker and did not take him seriously.
iii) On the 28 th September 2001, while attending a course, he announced to his classmates and to the lecturer that he was not afraid of any backlash following the events of 11 th September because "my family name is Bin Laden" and stated "I am a member of Hamas."
He was arrested on the 10 th December 2001 and interviewed on a number of occasions between the 10 th and 14 th December 2001. The interviews may be summarised as follows:
i) He admitted that he had been a member of Hamas from either 1997 or 1998, but said that he had left in 1999 because he had discovered that it was involved in the killing of innocent civilians.
ii) During his time as a member he had received training in the use of firearms and explosives and had been involved in attacks on the Israeli Army.
iii) His father belonged to but was not an active member of Hamas.
iv) He described Hamas as a military organisation and its members who died in the Palestinian cause as martyrs. He could not understand why it was seen as a terrorist group when its members were merely trying to defend themselves against the Israelis.
v) He said that he had had nothing to do with terrorism since he had arrived in the United Kingdom and had not come to this country to cause trouble. Although he would not use explosives in the United Kingdom, he would do so if he was in Palestine.
vi) He denied the conversations attributed to him by the witnesses at the hostel and the college.
vii) He declined to give details of the membership of Hamas or how it was financed.
He was charged with the two offences which became the first two counts in the indictment and was remanded in custody. Whilst in custody, he wrote a letter to the lecturer who was to be a prosecution witness which was said to have been intended to intimidate. It is not necessary for the purposes of these proceedings to deal with this offence in any greater detail.
At the Crown Court, counsel for the Crown accepted that the acquitted person only bore an evidential burden in relation to the defence under section 11(2) of the Act. In other words he accepted that as the defendant was able to raise upon the evidence a real issue as to whether or not he had become a member of Hamas, or professed to be a member of Hamas, before it was a proscribed organisation, it was for the prosecution to establish to the criminal standard of proof that either his membership or professed membership had been after Hamas had been proscribed, or that he had taken part in the activities of the organisation after it had been proscribed. On the basis of that concession by counsel for the Crown, the judge concluded that the acquitted person had sufficiently raised the issue as to when he first became a member of or professed membership of Hamas, and that the prosecution had failed to establish to the criminal standard of proof that he had taken part in the activities of Hamas since proscription. The Attorney General, in referring the matter to this court, is principally concerned with whether or not counsel for the prosecution was correct to concede that the acquitted person only had an evidential, as opposed to a legal burden of establishing the defence under section 11(2) of the Act.
Counsel for the Crown clearly made his concession on the belief that section 11(2) if construed so as to impose a legal burden of proof, that is the task of proving the defence on the balance of probabilities, would conflict with the presumption of innocence, and would accordingly be a breach of Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). He did so on the basis of the decision of the House of Lords in R �v�Lambert [2002] 2AC 545, in which the House, strictly speaking obiter, determined, by a majority, that the provision with which the House was concerned, apparently imposing a legal burden on a defendant to establish a defence would, so construed, amount to a breach of Article 6(2); but their Lordships concluded that the provision could, in accordance with section 3(1) of the Human Rights Act 1998, be construed so as to impose an evidential burden only and would be proportionate and accordingly compatible with the Convention.
Since the case of Lambert there have been a number of cases in which the courts have grappled with the issue of how to deal as a result with statutory provisions providing for a defence to a charge. In R �v�Drummond [2001] 2 Cr App R 25 and Sheldrake �v�DPP [2003] EWHC Admin 273 (QB) the courts considered provisions of the Road Traffic Acts. In R �v�Carass [2002] 2 Cr App R 77 and R �v�Daniel [2002] EWCA Crim 959, the courts considered provisions of the Insolvency Act 1966. In R �v�Halton Division Magistrates Court and the Forestry...
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