Court of Appeal
| DOI | 10.1350/jcla.2008.72.2.484 |
| Published date | 01 April 2008 |
| Date | 01 April 2008 |
| Subject Matter | Court of Appeal |
Court of Appeal
Terrorism-related Documents: Defining the Ambit of s. 58
of the Terrorism Act 2000
K v R[2008] EWCA Crim 185
Keywords Terrorism; Certainty; Propaganda; Possession of documents
On 4 January 2008, the appellant, K, appeared before Leeds Crown
Court charged on indictment with offences contrary to s. 58 of the
Terrorism Act 2000. Section 58(1) of the 2000 Act provides, so far as is
material, 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. The indictment
consisted of three counts: possession of a CD-ROM containing a copy of
the Al Qaeda training manual; possession of a copy of ‘Zaad-e-Mujahid’,
a text directed to the formation and organisation of Jihaad movements;
and possession of ‘The Absent Obligation’, a text arguing that a Muslim
is under an obligation to work for the establishment of an Islamic state.
In a preparatory hearing it was submitted on behalf of K that s. 58 of the
Terrorism Act 2000 is insufficiently certain to comply with the require-
ments of common law doctrine of legality and Article 7 of the European
Convention on Human Rights. Further, it was submitted that the s. 58
offence was never intended to extend to the latter two publications as
they constituted theological or propagandist documents.
At first instance the trial judge rejected the submission that the
continued prosecution of the indictment amounted to an abuse of
process of the court. Leave to appeal was refused and subsequently
granted by the Court of Appeal, presided over by Lord Phillips CJ. At the
hearing, which took place on 5–6 February, identical arguments were
advanced by the defence. It was submitted that s. 58 was insufficiently
precise to enable an individual to regulate his or her conduct in order to
avoid criminal liability. Further, it was submitted that the documents
merely constituted propagandist publications that s. 58 was never in-
tended to encompass and that on the basis of these two grounds,
continued prosecution amounted to an abuse of process of the court.
H
ELD
,
DISMISSING THE APPEAL
, the scope of s. 58 could be helpfully
considered in light of s. 2 of the Terrorism Act 2006. Section 2(3) of the
2006 Act draws a distinction between (a) publications that are under-
stood to offer encouragement to commit, prepare or instigate acts of
terrorism and publications that (b) are understood to be wholly or
mainly useful for those purposes. The court held that it was the latter
category that the language of s. 58 was congruous with. From the
language of s. 58, the court declared (at [13]) that a document or record
102 The Journal of Criminal Law (2008) 72 JCL 102–108
doi:1350/jcla.2008.72.2.484
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