Nasserdine Menni V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Bracadale,Lord Justice General |
| Neutral Citation | [2013] HCJAC 158 |
| Docket Number | XC512/12 |
| Date | 06 December 2013 |
| Court | High Court of Justiciary |
| Year | 2013 |
| Published date | 06 December 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 158 | |
| Lord Justice General Lord Brodie Lord Bracadale | Appeal No: XC512/12 OPINION OF THE COURT delivered by LORD BRACADALE in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by NASSERDINE MENNI Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Taylor, QC, McCaffrey; John Pryde & Co, Edinburgh
Respondent: Wade QC, Barron; Crown Agent
6 December 2012
Introduction
[1] The appellant was indicted to a preliminary hearing at the High Court at Glasgow on 16 November 2011. The indictment alleged a conspiracy between the appellant, Taimour Abdulwahab (the deceased) and other unspecified persons to further terrorist aims by criminal and other means, including the use of explosive devices in the commission of an act of terrorism directed against members of the public in Sweden, with intent to murder them. Sub-heads (a)-(u) narrated a number of things said to have been done in pursuance of the conspiracy. Some of these amounted to substantive offences while others did not. The substantive offences included allegations of obtaining banking facilities by fraud, obtaining certain benefits by fraud, obtaining leave to remain in the United Kingdom by means of deception, contrary to the Immigration Act 1971 section 24A(1)(a) and having possession of an immigration status document which was improperly obtained, contrary to the Identity Cards Act 2006 section 25(1)(b). The significant sub-head for the purposes of this appeal is sub-head (c) which libelled a contravention of section 17 of the Terrorism Act 2000 (the 2000 Act).
[2] On 28 July 2012 after a lengthy trial at the High Court at Glasgow the jury found the charge of conspiracy not proven but found the appellant guilty of a number of the sub-heads which were capable of standing alone as offences. These included sub-head (c) as amended in the following terms:
"Between 1 January 2005 and 16 December 2010 both dates inclusive, at Flat 2/2, 106 Dalmarnock Road, Flat 1/4, 150 Charles Street and Flat 19/6, 64 Curle Street, all Glasgow, 15 Argyll Avenue, Luton, England and elsewhere you did enter into or become concerned in an arrangement as a result of which money or other property was made available or was to be made available to another whilst knowing or having reasonable cause to suspect that it will or may be used for the purposes of terrorism, in that you did on various occasions transfer sums of money totalling £5,725 to an account in the name of said Taimour Abdul Wahab at the National Westminster Bank, 31 George Street, Luton, England, you did transfer the sum of £1,000 into an account in the name of Hemel Tellis, c/o Strathclyde Police, Glasgow at the Royal Bank of Scotland, Luton, England all in the knowledge or with reasonable cause to suspect that said sums of money would or may be used for the purposes of terrorism; contrary to the Terrorism Act 2000, section 17."
In due course the appellant was sentenced to seven years imprisonment in respect of the conviction on sub-head (c). Lesser sentences were imposed in respect of the other sub-heads of which the appellant was convicted.
[3] This appeal is against conviction and sentence on sub-head (c). No appeal is taken with respect to the remaining convictions and sentences. The appellant lodged a Note of Appeal in which there were four grounds directed against conviction together with an appeal against sentence. This Opinion deals with Grounds 1 and 4 only. The appeal on Grounds 2 and 3 will be heard separately.
[4] Although the first ground of appeal contained a number of elements, as it was developed in written and oral submissions it came to be directed at the sufficiency of evidence in relation to sub-head (c) as a stand-alone charge and the trial judge's directions in that respect. The fourth ground of appeal was directed at the manner in which the Crown and the trial judge dealt with the evidence of Omar Menni, the brother of the appellant, who was called to give evidence by the Crown.
[5] Section 17 of the 2000 Act provides:
"A person commits an offence if-
(a) he enters into or becomes concerned in an arrangement as a result of which money or other property is made available or is to be made available to another, and
(b) he knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism."
Section 1 provides a definition of terrorism:
"(1) In this Act "terrorism" means the use or threat of action where-
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious racial or ideological cause.
(2) Action falls within this subsection if it-
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section-
(a) "action" includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) "the government" means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."
[6] Senior counsel for the appellant, Mr Taylor QC, raised an introductory point in relation to the construction of section 17 of the 2000 Act. He submitted that the question of whether the Crown had proved that the appellant had reasonable cause to suspect that payment would be or may be used for the purposes of terrorism should be approached on a subjective basis rather than an objective one. There was a presumption in Scots law that mens rea was required before a person could be found guilty of an offence. That was rebuttable only by clear statutory language or by necessary implication. The proper construction of section 17 was that the provision of money was criminal only where the person who made the payment knew and intended that it was for the purposes of terrorism or where that person suspected that the money would or might be used for the purposes of terrorism. It would be wrong to approach the case by looking at the facts known to the individual and asking whether the reasonable person in these circumstances would have the necessary suspicion. Mr Taylor conceded that the mind of the accused person could not be solely determinative of his criminal responsibility and a line would require to be drawn at some point. In support of these propositions Mr Taylor referred to a number of English cases including Barnfather v Islington Education Authority 2003 1 WLR 2318; Gammon (Hong Kong) Limited v Attorney General of Hong Kong 1985 1 AC 1; B (A minor) v Director of Public Prosecutions 2000 2 AC 428. In B (A minor) at p 459 Lord Nicholls of Birkenhead quoted what he described as Lord Reid's magisterial statement in the leading case of Sweet v Parsley 1970 AC 132, 148-148:
"There has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea... It is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary."
In Gammon (Hong Kong) Limited Lord Scarman at p 14 set out five propositions:
"In their Lordships' Opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellant's counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."
We were not greatly assisted by reference to these authorities. We note that in Gammon (Hong Kong) Limited the offence was a contravention of section 40 of the Buildings Ordinance which was held to be an offence of strict liability. In B (A minor) the offence was in the following terms:
"Any person who commits an act of gross indecency with or towards a child under the age of 14, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years...
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Nasserdine Menni Against Her Majesty's Advocate
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