R v F (Terrorism)
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 16 February 2007 |
| Neutral Citation | [2007] EWCA Crim 243 |
| Docket Number | Case No: 2007/00579/B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 16 February 2007 |
The President of the Queen's Bench Division
Mr Justice Forbes and
Mr Justice Irwin
Case No: 2007/00579/B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
THE HON MR JUSTICE MACKAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Geoffrey Robertson QC and Mr A Suterwalla for the Appellant
Mr David Perry QC, Mr Nicholas Hilliard and Miss R Franton for the Prosecution
Hearing dates: 5 th and 6 th February 2007
President of the Queen's Bench Division
This is an appeal with leave of Mackay J from his decision on 25 th January this year at Woolwich Crown Court following a preparatory hearing held under s29 of the Criminal Procedure and Investigations Act 1996. It raises important questions about the construction of the Terrorism Act 2000 (the 2000 Act). We have received helpful written and oral submissions from Mr Geoffrey Robertson QC on behalf of the appellant and Mr David Perry QC on behalf of the Crown, and with their agreement, we admitted written submissions prepared by Mr Keir Starmer QC on behalf of Justice.
The Facts
A very brief summary will be sufficient.
The appellant is a native of Libya. We are told that members of his family as well as his friends were murdered in Libya by or on behalf of the present regime. He fled to the United Kingdom in 2002, where, in 2003 he was granted asylum. This decision demonstrated that he had a well justified fear of persecution if he were returned to his native country.
In October 2005 his accommodation in England was raided. After the material taken from it was analysed, on 27 th March 2006 he was arrested and charged with offences under the 2000 Act. The indictment contains two counts. Each alleges a contravention of s58 (1)(b) of the Act. The appellant is alleged to have been in possession of a document or record containing information of a kind “likely to be useful to a person committing or preparing an act of terrorism”. In view of some of the submissions by Mr Robertson, it is perhaps worth emphasising that the documents in question appear, if the Crown's case is right, to go very much further than the passionate expression of implacable opposition to the present regime in Libya or abhorrence of a tyrannical dictatorship.
The first count relates to part of one of twenty one files contained on a CD downloaded from a Jihadist website, entitled “a special training course on the manufacture of explosives for the righteous fighting group until God's will is established”. The Crown suggests that this document provides detailed instructions on how explosive devices may be made, and that s58(1)(b) applies to the information contained in it. The second count refers to a handwritten document which, according to the Crown's case, describes in detail how a terrorist cell may be set up. It is said to be a “blueprint” for such a cell. It points a route to Jihad, the removal of Colonel Gaddafi from power in Libya and establishing the rule of Allah. It recommends the acquisition of firearms suitable for action within cities and the need “to try to learn to use explosives and mining”. Accordingly this material, too, falls within s58(1)(b).
The appellant denies possession of the document identified in the first count. In summary, his defence is that he did not have it, alternatively if it was in his possession, he was ignorant of its contents. It is also suggested that the information would be unlikely to be of assistance to a would-be terrorist. The appellant accepts that he was in possession of the handwritten document which is the subject of the second count. The defence is that this document was passed to him by a leader of a resistance movement in Libya, as part of an intended plan to establish a movement in Libya opposed to the present regime headed by Colonel Gaddafi. The defence draw attention to its condemnation of the injustice and oppression of the Gaddafi regime, and an asserted insistence that the activities of the proposed opposition movement should not harm civilians or foreigners. Its targets are Colonel Gaddafi himself, his secret police and his army. The document anticipates that the Gaddafi regime will be replaced by a popular movement of devout Muslims.
General
Terrorism is an international modern scourge. In recent years, New York, Bali, Madrid, London and Sharm el-Sheikh have all suffered the dreadful experience of indiscriminate slaughter resulting from terrorist activity. Sadly, it would be wrong to conclude that a line can now be drawn underneath that list, or that the names already on it will never reappear. The protection of the community as a whole is one of the first great responsibilities of government, and in this country it is Parliament which provides the legislation appropriate to address the threat posed by terrorism.
We shall not attempt to discuss the history of political thought, or the principles of political theory and obligation, as developed in this country and abroad, or indeed to refer to the many important texts included in our papers and referred to in argument. However as the argument advanced it became increasingly clear that, despite the commonality of view that terrorism was detestable, subtle refinements and differences about its true meaning could legitimately arise for discussion. Much thought was given to the right to rebel against a tyrannous or unrepresentative regime. We were shown that John Locke observed in his Second Treatise of Government that the “people” were entitled to resume “their original liberty” when the legislators sought to “reduce them to slavery under arbitrary power”. The United States Declaration of Independence (1776) having identified the famous “self evident” truths, added that “whenever any Form of Government becomes destructive of these ends, it is the Right of People to alter or to abolish it, and institute new Government”. The preamble to the Universal Declaration of Human Rights 1948 acknowledges the possibility of citizens having recourse “as a last resort to rebellion against tyranny and oppression”. Article 1 of the International Covenant on Civil and Political Rights 1966 underlines that “all peoples have the right to self determination”. By virtue of that right they freely determine their political status. We rather doubt whether the authors of these texts would have supported terrorism in its modern form. That said, we were also told that protection is provided in international law for a number of categories of “freedom fighters”, by making it clear that if they avoid “war crimes”, they may be treated as legitimate combatants. If so, violence in a justified cause cannot be said to be the exclusive prerogative of governments.
The call of resistance to tyranny and invasion evokes an echoing response down the ages. We note, as a matter of historical knowledge, that many of those whose violent activities in support of national independence or freedom from oppression, who were once described as terrorists, are now honoured as “freedom fighters”. Others, who continued to use violence to maintain resistance to national enslavement by invading forces, after the official surrender by their own governments, are regarded as heroes and heroines. Those who died in these causes were “martyrs” for them. Indeed we can look about the world today and identify former “terrorists” who are treated as respected, and in one case at least, an internationally revered statesmen. In many countries statues have been erected to celebrate the memory of those who have died in the course of, or have been executed as a result of, their violent activities, but who in time have come to be identified as men and women who died for the freedom and liberty of their countries or their consciences.
Violence, of course, is not the only way. In “Non-Violence in Peace and War” (1942) Mahatma Ghandi posed the question which demands an answer every time violence is used, even in a just cause. “What difference does it make to the dead, the orphans and homeless, whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty or democracy?”
The next general matter which requires attention, in view of the arguments, is rather different. This feature relates not to the activities of terrorists, but to the impact on law-abiding citizens of legislation, intended to protect them from the terrorist threat, which nevertheless interferes with their ordinary freedoms and liberties. Mr Robertson suggested that the current terrorism legislation has had this effect. In due course, we shall address the argument that legislation of this kind should be construed so as to ensure that so far as possible the ordinary rights enjoyed by citizens are maintained, and that they should not be lost through oversight or ambiguity. That said, Parliament has been and will no doubt continue to be aware of the dangers of over-zealous, unnecessary interference with them. For example, we note that in December 2005 the Joint Committee on Human Rights spoke of the problems arising from the fact that “counter-terrorism measures were capable of application to speech or actions concerning resistance to an oppressive regime overseas…”
These are some of the considerations which give rise to uncertainties about the true definition of terrorism, and the difficulties of resolving them. The debate can be lengthy. For present purposes, however, the only definition which requires our attention is found in section 1 of the 2000 Act.
The 2000 Act
Section 1 of the Act is...
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