R v G; R v J
| Jurisdiction | England & Wales |
| Judgment Date | 04 March 2009 |
| Neutral Citation | [2009] UKHL 13 |
| Date | 04 March 2009 |
| Court | House of Lords |
[2009] UKHL 13
Appellate Committee
HOUSE OF LORDS
Appellant(G):
David Perry QC
William Hays
Respondent(G):
Ian Leist
Emily Dummett
Appellant (J):
Mark Heywood
Ben Temple
(Instructed by Crown Prosecution Service)
Respondent(J):
Lawrence McNulty
Peter Lownds
(Instructed by Smith Partnership (G), Tuckers (J))
Ordered to Report
The Committee (Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Mance) have met and considered the cause R v G (Respondent) (on appeal from the Court of Appeal Criminal Division) and R v J (on appeal from the Court of Appeal Criminal Division) We have heard counsel on behalf of the appellants and respondent. The report has been prepared by Lord Rodger.
This is the considered opinion of the committee.
There are two appeals before the House which raise issues relating to the interpretation of section 58 of the Terrorism Act 2000 ("the 2000 Act"). Since some of the argument is based on a comparison between section 57 and section 58, it is convenient to begin by setting out the relevant parts of both.
Section 57(1)-(3) 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.
(3) In proceedings for an offence under this section, if it is proved that an article -
(a) was on any premises at the same time as the accused, or
(b) was on premises of which the accused was the occupier or which he habitually used otherwise than as a member of the public,
the court may assume that the accused possessed the article, unless he proves that he did not know of its presence on the premises or that he had no control over it."
Subsection (4) originally provided for a maximum of 10 years imprisonment plus a fine on conviction on indictment, but this was increased to 15 years imprisonment by section 13 of the Terrorism Act 2006 ("the 2006 Act"). On summary conviction the maximum penalty is imprisonment for six months and a fine not exceeding the statutory maximum.
Section 58(1)-(3) provides:
"(1) A person commits an offence if-
(a) he 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) he possesses a document or record containing information of that kind.
(2) In this section 'record' includes a photographic or electronic record.
(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."
Subsection (4) provides for a maximum penalty of 10 years imprisonment plus a fine on conviction on indictment and a maximum penalty of six months imprisonment and a fine not exceeding the statutory maximum on summary conviction. Subsection (5) empowers the court, before which a person is convicted of a section 58 offence, to order the forfeiture of any document or record containing information of the kind mentioned in subsection (1).
Section 118(1)-(4) is important for the operation of both these sections. They provide:
"(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter.
(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution prove s beyond reasonable doubt that it is not.
(3) Subsection (4) applies where in accordance with a provision mentioned in subsection (5) a court -
(a) may make an assumption in relation to a person charged with an offence unless a particular matter is proved, or
(b) may accept a fact as sufficient evidence unless a particular matter is proved.
(4) If evidence is adduced which is sufficient to raise an issue with respect to the matter mentioned in subsection (3)(a) or (b) the court shall treat it as proved unless the prosecution disproves it beyond a reasonable doubt."
By subsection 5(a), subsections (2) and (4) apply to sections 57 and 58 of the 2000 Act.
The Facts of G's Case
The first case concerns a Mr G who is awaiting trial in the Crown Court at Woolwich where he faces two counts of terrorism. The first is under section 5(1) of the 2006 Act. It alleges that between 13 April 2006 and 3 February 2007 Mr G was preparing to commit acts of terrorism. The second count, under section 58 of the 2000 Act, alleges that between 27 January 2005 and 3 February 2007 Mr G collected information of a kind that was likely to be useful to a terrorist.
In 2005 Mr G was sentenced, for a number of non-terrorist offences, to detention in a young offender institution for a period of three years six months. On 22 March 2006 he was released on automatic conditional licence, but on 26 March 2006 he was re-arrested under section 136 of the Mental Health Act 1983 and returned to detention. His licence was subsequently revoked. On 25 October 2006, he was transferred to an adult prison. During his time in detention, Mr G had converted to Islam.
In the current proceedings against Mr G, the prosecution case is that, while in custody, he collected and recorded information likely to be of use to a person committing or preparing an act of terrorism. The items which he collected include plans for making bombs, including a diagram of a pipe bomb, and various textbooks containing information relating to explosives. He made notes on how explosives could be manufactured and used. No explosives or viable explosive device or part of any explosive device were recovered from him. The Crown further alleges that Mr G drew a map of the Territorial Army Centre in Chesterfield and identified the location of the armoury there. He wrote down plans to attack the Centre and to kidnap the caretaker. Extremist material containing his observations on the waging of Jihad in Great Britain was also recovered from him.
The items in question were recovered during repeated searches of Mr G's cell accommodation at HMYOI Stoke Heath on 4 April and 10 August 2006, and at HMP Featherstone on 30 December 2006 and 23 January 2007.
Mr G was released from prison on 2 February 2007, but was immediately arrested and interviewed by police officers under caution in relation to these various items. In summary, the explanation which Mr G gave for collecting and recording the information was that he wanted to "wind up" the prison staff because they were provoking him. He said, "… so I wanted to wind them up and I know how this terrorism stuff … really gets on their nerves…". He said that he left the material in his cell so that it could be found.
After the second interview it became apparent to the interviewing officers that Mr G was mentally ill and was not fit to be questioned further.
On 7 February 2007 Mr G was diagnosed as suffering from a paranoid psychosis or schizophrenia and on 12 June he was transferred to Ashworth Hospital under the provisions of the Mental Health Act 1983.
In a psychiatric report dated 7 November 2007, Dr Qurashi, a consultant forensic psychiatrist, concluded that Mr G is suffering from a severe and enduring mental illness, viz paranoid schizophrenia, which had not previously been diagnosed or treated. The Crown accepts that, in Dr Qurashi's opinion, Mr G collected and recorded the information in question as a direct consequence of his illness. In his report Dr Qurashi said this:
"In summary [G's] account of the various documents found in his cell whilst on remand was to 'wind up' prison officers. He has consistently reported that he had no intention of committing acts of terrorism. When asked why he felt the need to antagonise prison officers he believes that [they] were 'whispering' about him. This is highly likely to be a psychotic experience, namely an auditory hallucination."
Dr L P Chesterman prepared a further psychiatric report dated 20 March 2008 at the request of the Crown Prosecution Service. It included the following passage:
"It would of course be a matter for a jury to determine [G's] intent. Whilst the presence of mental illness may be relevant to [G's] motivation for committing the alleged index offences, his mental illness would not have prevented him forming the necessary intent nor does Dr Qurashi express such an opinion."
On 18 January 2008 Calvert-Smith J ordered a preparatory hearing under the Criminal Procedure and Investigations Act 1996 to resolve whether evidence about Mr G's mental illness, and his motivations in light of it, was capable of amounting in law to a defence under section 58(3) of the 2000 Act. At the preparatory hearing on 8 February 2008, Pitchford J held that Mr G had no defence of reasonable excuse under section 58(3) and granted leave to appeal.
Five days later, on 13 February 2008, the Court of Appeal (Lord Phillips of Worth Matravers LCJ, Owen and Bean JJ) gave judgment in two appeals which are relevant for present purposes. In R v Zafar [2008] 2 WLR 1013, the Court dealt with the interpretation of section 57 of the 2000 Act, while in R v K [2008] 2 WLR 1026, the Court considered, first, the nature of the documents which fall within the section and, secondly, the scope of the defence of reasonable excuse under section...
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