Court of Appeal
| Published date | 01 October 2008 |
| Date | 01 October 2008 |
| DOI | http://doi.org/10.1350/jcla.2008.72.5.517 |
| Subject Matter | Court of Appeal |
Jury Directions: Interpreting s. 57 and s. 58 of the
Terrorism Act 2000
R v Malik [2008] EWCA Crim 1450
Keywords
Reasonable excuse; Practical assistance; Terrorism; Watson
direction
M, a 24-year-old female, was arrested on 27 October 2006. Police seized
a number of items from her home including a computer, publications
that appeared to support violent jihad, poems describing killings and
beheadings that had been penned under the pseudonym ‘the Lyrical
Terrorist’ and other documents. During detention, M wrote several
pages of notes that gave an account of how she had been previously
influenced by radical Islamic preachers and, as a result, had downloaded
articles, books, talks and videos from the internet, which had provided a
catalyst for her poetry. She claimed that she regretted this involvement,
wanted to move on with her life and had had no involvement in
extremism for the previous two years. Forensic examination of the
computer revealed material that formed the basis for an indictment
on two counts under s. 57 and s. 58 of the Terrorism Act 2000
respectively.
Section 57(1) provides that ‘a person commits an offence if he pos-
sesses an article in circumstances which give rise to a reasonable suspi-
cion that his possession is for a purpose connected with the commission,
preparation or instigation of an act of terrorism’. It is a defence under
s. 57(2) for a person charged to prove that his possession of the article
was not for such a purpose. Section 58(1) provides that a person
commits an offence if he (a) ‘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) ‘if he possesses a document or record containing
information of that kind’. Under s. 58(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. For either of the two
possible defences, a charged individual must adduce evidence which is
sufficient to raise an issue with respect to the matter. Under s. 118 of the
Terrorism Act 2000, the court will assume that the defence is satisfied
unless the prosecution proves beyond reasonable doubt that it is not. In
her defence, M contended that the documents had been accessed out of
curiosity or to assist her with her poetry; handbooks and manuals had
been deleted from the computer, she was unaware of their continued
existence and that she did not intend any of them to be used for a
terrorist purpose; and that none of the documents was likely to be useful
to a person committing or preparing an act of terrorism.
The prosecution adduced some 21 documents as evidence, including
an operations manual for a Sniper rifle, MP9 pistol and anti-tank
The Journal of Criminal Law (2008) 72 JCL 349–359
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doi:1350/jcla.2008.72.5.517
The Journal of Criminal Law
weapon, the Terrorists Handbook, the Firearms and RPG Handbook, the
Mujahideen Poisons Handbook and a document entitled ‘Obstacles,
Mines and Demolition’. The remaining 14 documents, however, were
somewhat innocuous, consisting largely of propagandist or theological
material and including, for example, a document described as ‘First Aid’.
M was acquitted of the s. 57 offence, convicted of the offence under s. 58
and appealed to the Court of Appeal. It was submitted that (1) there was
no case to answer on count 2 of the indictment; (2) the Recorder had
misdirected the jury on the ingredients of the s. 58 offence; (3) the
conviction could have been returned on the basis of material which
should not have been included in count 2 of the indictment (namely
the 14 other documents); (4) the Recorder had misdirected the jury on
the meaning of the expression ‘reasonable excuse’; (5) the acquittal on
count 1 of the indictment should have led to an acquittal on count 2; and
(6) the Recorder should not have given a modified Watson direction to
the jury. As enunciated in the case of R v Watson [1988] QB 690, this
procedure should consist of a verbatim recital of the established direc-
tion. It is designed to avoid undue pressure being placed on the jury,
while inquiring as to the possibility of reaching a majority verdict.
The respondent conceded that the decision in R v K [2008] EWCA
Crim 185 rendered the appellant’s conviction unsafe and that following
that decision, the majority of the documents relied on did not fall clearly
within the scope of the s. 58 offence. The respondent agreed that the
Recorder had misdirected the jury on the ingredients of the s. 58 offence
and on the meaning of ‘reasonable excuse’. The acquittal on count 1 of
the indictment seemed to suggest that the jury were unsure whether
the appellant possessed the material for a terrorist purpose. Given the
direction in R v K, the respondent contended that it was likely that
the prosecution would have failed to prove the absence of a reasonable
excuse for the possession of the material. The respondent also accepted
the possibility that a verdict of guilty was based on material that should
not have been included in the second count of the indictment. It was
contested, however, that there was no case to answer; it was further
contested that a modified Watson direction was sufficient in itself to
constitute a ground of appeal.
HELD, QUASHING THE CONVICTION, seven of the 21 documents were
capable of falling within the ambit of s. 58 (at [28]). The principal
problem for the jury was that they were required to consider not merely
documents that were capable of being of practical utility to a person
committing or preparing an act of terrorism, but a larger number of
documents that were not (at [34]). There was scope for the jury to have
become confused. It was possible that the jury had convicted on the basis
of material that was not capable of falling within the s. 58 definition. The
failure to appreciate the R v K test of ‘practical assistance’ further
rendered the conviction unsafe. The court was not persuaded that the
jury were given a misleading direction on the issue of ‘reasonable
excuse’ despite the subsequent decision in R v K. Although there was not
necessarily a complete overlap between s. 57 and s. 58, it was not safe to
conclude that the appellant had downloaded the material with the
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Jury Directions: Interpreting s. 57 and s. 58 of the Terrorism Act 2000
intention that it should be used to assist acts of terrorism and retained
that information after she had abandoned that intention. The Watson
direction did not in itself constitute a good ground for appeal.
COMMENTARY
It is almost axiomatic to state that given the perceived terrorist threat,
counter-terrorism offences are increasingly panoptical. It has been noted
that, given the breadth of the provisions, legislation is close to contain-
ing an offence of terrorism (see C. Walker, ‘Terrorism: Terrorism Act
2000 s.57—Direction to Jury on Defence of Possession of Items for
Defensive Purposes’ [2008] Crim LR 72 at 74). To that end, s. 57 and
s. 58 offences complement the counter-terrorism...
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