R v Aitzaz Zafar
| Jurisdiction | England & Wales |
| Judgment Date | 13 February 2008 |
| Neutral Citation | [2008] EWCA Crim 184 |
| Docket Number | Case No: 200704347C2, 200704457C2, 200704452C2, |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 February 2008 |
[2008] EWCA Crim 184
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Beaumont QC
The Recorder of London
The Lord Chief Justice of England and Wales
The Honourable Mr Justice Owen and
The Honourable Mr Justice Bean
Case No: 200704347C2, 200704457C2, 200704452C2,
200704444C2,200704441C2, 200800259 C2
Mr J. Bennathan QC for the appellant Zafar
Mr N.M. Peters QC for the appellant Butt
Mr M. Massih QC for the appellant Iqbal
Mr J. Sturman QC for the appellant Raja
Mr D. Gottlieb for the appellant Malik
Mr A. Edis QC for the Respondent
Hearing dates: 5 th and 6 th February 2008
Lord Phillips of Worth Matravers CJ:
On 24 July 2007 before the Recorder of London (His Honour Judge Beaumont QC) and a jury the appellants were convicted of offences of possessing articles for a purpose connected with the commission, preparation or instigation of an act of terrorism, contrary to section 57 of the Terrorism Act 2000 ('the 2000 Act'). The articles in question were documents, compact discs or computer hard drives on which material had been electronically stored. The material included ideological propaganda as well as communications between the appellants and others which the prosecution alleged showed a settled plan under which the appellants would travel to Pakistan to receive training and thereafter commit a terrorist act or acts in Afghanistan.
The case had an unusual pre-trial history. The appellants originally faced charges under section 58 of the 2000 Act. On the first day of the committal proceedings the prosecution added counts under section 57 reflecting the same particulars as those under section 58. At a preparatory hearing at the Central Criminal Court the Recorder ruled on 9 January 2007 that electronically stored information was capable of being an article for the purposes of section 57. The appellants appealed. That interlocutory appeal was heard on 6 February 2007 and in a judgment handed down the following day ( R v M and Others (No.1) [2007] EWCA Crim 218) the court held that documents and records, including electronically stored information, could not be the subject of convictions under section 57.
The correctness of that decision was challenged within a matter of weeks before a five-judge constitution of this court in R v Rowe [2007] EWCA Crim 635; [2007] QB 975. Rowe had been convicted on two counts of possessing an article for terrorist purposes contrary to section 57 in respect of a notebook which contained mortar instructions and a substitution code which listed components of explosives and places of a type susceptible to terrorist bombing. On 15 March 2007 this court, dismissing his appeal, held that documents and records can be “articles” for the purposes of section 57 and that the decision in R v M and Others (No.1) had been per incuriam.
On 4 April 2007 the Recorder of London gave a further ruling in the present case that he would be bound by the decision in Rowe. That ruling was upheld in a second interlocutory appeal ( R v M and Others (No.2) [2007] EWCA Crim 970; [2007] 3 All ER 53). The court, noting that a ruling made by a judge at a preparatory hearing on any question of law may be varied by him in the interests of justice pursuant to section 31 (11) of the Criminal Procedure and Investigations Act 1996, held that the Recorder was right to exercise that power in the present case so as to follow the law as set out in Rowe.
Thereafter the prosecution elected to proceed only in respect of the charges under section 57. The trial commenced on 16 May 2007.
The prosecution case may be summarised as follows. Four of the five appellants were students at Bradford University. The fifth, Raja, was a schoolboy in Ilford. Raja made contact with Iqbal through the internet messaging service MSN. On 24 February 2006 Raja left his home with his passport, leaving a martyrdom song on the family computer and a letter under his mattress stating that he had gone to take part in conventional warfare abroad. His family contacted the police, who search his and examined the contents of the computer. The hard drive of his computer revealed a significant amount of religious or political material, some of it of an extreme nature.
Raja had in fact gone to Bradford using a bus ticket paid for by Iqbal. He stayed in Bradford for a few days at the house at which Iqbal and Zafar lived, and brought with him three discs he had made containing selected material from the computer and labelled as 'philosophy discs'. During his stay he was in contact with his family who prevailed upon him to return home. On his return he was arrested.
Subsequent police enquiries led them to arrest and search the other appellants, which revealed that they too were in possession of radical Islamic material and other material such as a USA military manual downloaded from the internet. Further MSN communications were found. These included an MSN discussion between all four of the Bradford appellants and a cousin of Malik, Imran, who lived in Pakistan, on 1 March 2006. It was the prosecution case that Imran was a foreign based terrorist. In the course of that discussion Butt asked about how to travel without raising suspicion.
Early in the trial Mr David Gottlieb, on behalf of Malik, asked the judge to rule on the meaning and scope of section 57. His concise written submissions in support of the application argued that the phrase “a purpose connected with” required the connection to be direct, not merely remote; and that the purpose had to be connected with the immediate commission, preparation or instigation of terrorist acts, at least in the sense of something that was to happen within a “relatively short” time. The judge declined to give such a ruling during the prosecution evidence.
At the conclusion of the prosecution case submissions were made on behalf of each defendant that there was no case to answer. The Recorder rejected the submission. The trial accordingly proceeded. Iqbal, Zafir and Butt gave evidence. Raja and Malik did not.
The jury acquitted Zafar and Iqbal on one count, count 3, which charged them with possession of three 'philosophy disks'. These contained material emanating from Raja. The juries returned unanimous verdicts of guilty in respect of all the other charges.
The Recorder imposed sentences of 3 years' imprisonment on Malik, 3 years' detention in a young offenders' institution on Zafar and Iqbal, 27 months' detention on Butt, and 2 years' detention on Raja.
Each defendant appeals against conviction with the permission of the single judge except Iqbal, to whom we granted permission at the outset of the hearing.
A number of different grounds of appeal were advanced, some particular to individual appellants, others of general application. We do not need to consider all of these, for the result of this appeal turns on the principal issue raised on behalf of the appellants, which is the scope of section 57 of the 2000 Act. It was submitted on behalf of the appellants that an offence could only be committed under that section if there was a direct connection between the article possessed by the defendant and an intended act of terrorism. There was no such connection in this case, nor could there be having regard to the nature of the relevant articles. There was no case that should have been allowed to go to the jury. Furthermore, the Recorder did not adequately direct the jury as to the necessary connection between the articles in the appellants' possession and the acts of terrorism with which the prosecution alleged they were connected.
We propose first to consider the construction of section 57, secondly to consider whether, having regard to the scope of section 57 there was a case that should have been left to the jury at the close of the prosecution case and finally to consider whether the directions given by the Recorder to the jury adequately reflected the law as we have found it to be.
The scope of section 57
Section 57 provides:
“(1) A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism
(2) It is a defence for a person charged with an offence under this section to prove that his possession of the article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism”
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.
The Crown accepted in this case that, by the end of the evidence, each of the appellants 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.
'Terrorism' is defined by section 1 of the 2000 Act as including the use of firearms or explosives that endangers life for the purpose of advancing a political, religious or ideological cause.
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