R v Gul
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division,Re |
| Judgment Date | 22 February 2012 |
| Neutral Citation | [2012] EWCA Crim 280 |
| Docket Number | Case No: 2011/01697/C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 February 2012 |
[2012] EWCA Crim 280
President of the Queen's Bench Division
Mr Justice Silber
and
Mr Justice Kenneth Parker
Case No: 2011/01697/C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Paget QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tim Moloney QC and Ms Tatyana Eatwell for the Appellant
Mr S Larkin QC, Professor Malcolm Shaw QC and Miss B David for the Respondent
Hearing dates: 8 and 9 November 2011
The appellant uploaded videos onto the internet which the Crown contended encouraged the commission of terrorism as defined in s.1 of the Terrorism Act 2000 (as amended). Included in the videos were scenes showing attacks on soldiers of the Coalition forces in Iraq and Afghanistan by insurgents. After retirement the jury asked questions, including a question as to whether such attacks were terrorism within the definition in s.1. The judge told them they were. The issue on this appeal is whether that answer was correct.
It is necessary first to describe briefly the material and then to explain how the issue arose after the retirement of the jury.
The facts
The appellant was born on 24 February 1988 in Libya. He is a British citizen and has lived much of his life in the United Kingdom. At the time of the trial he had enrolled as a law student at Queen Mary Westfield College and since the trial has graduated with a 2:1 in Law. In February 2009 police officers executed a search warrant at his house. Material was found on his computer consisting of videos uploaded onto the internet site of YouTube and other websites. He was charged with offences under the Terrorism Act.
In a first trial, he was acquitted on some counts and the jury disagreed on others. He was re-tried in early 2011 at the Central Criminal Court before HH Judge Paget QC and a jury. The indictment charged him with six counts of the dissemination of terrorist publications in 2008 and 2009 contrary to s.2 of the Terrorism Act 2006.
He was convicted on all counts save count 5. He was sentenced to five years imprisonment less time on remand. His application for leave to appeal was referred to the Full Court. There was essentially one ground which related to the way in which the judge had directed the jury in relation to the definition of terrorism. In respect of that ground we grant leave. Shortly prior to the hearing of the appeal he sought to amend his Notice of Appeal to add a further ground in respect of a jury irregularity. In respect of that ground we refuse leave to appeal for reasons we explain at paragraphs 61 and following.
The matters charged
The videos posted by the appellant on YouTube and other websites in relation to the five counts on which he was convicted showed attacks by Al Qaeda, the Taliban and other proscribed groups on military targets, including those in Chechnya and Coalition forces in Iraq and Afghanistan, the use of IEDs against Coalition forces, images of Osama Bin Laden, Al Zarqawi and others, excerpts from "martyrdom videos" and symbols associated with proscribed organisations. There were also shown the 9/11 attack on New York and clips of attacks on civilians. Attacks on police were also included. The videos were accompanied by nasheeds, praising, for example, the bravery of those carrying out the attacks and their martyrdom and encouraging such attacks.
It was the appellant's case in relation to those counts that he thought that force against the military was justified and that those who were fighting the Coalition forces were rightly resisting the invasion of their country. He did not agree with the targeting of civilians and attacks on civilians. He was therefore not encouraging terrorism, but self defence.
Although the appellant was acquitted on a count which related largely to Israel, Palestine and Gaza, it is necessary to mention that it included images of an Israeli helicopter and military vehicle being blown up. It is not necessary to refer to the other evidence in relation to this video or the appellant's explanation in relation to it.
The questions from the jury after retirement
After retirement, the jury late on 22 February 2011 formulated a number of questions. One raised issues as to whether encouraging a resident of Gaza to blow up the Israeli helicopter was an act of terrorism. The remaining questions were:
"2. Is an explosives attack on Coalition forces in Iraq a terrorist attack or is there a distinction between terrorist attacks and self defence or "assistance" in such circumstances? Does it make a difference if the attack is on Iraqi police? Does it make a difference if the attack is by a proscribed group?
3. Are the answers to 2 the same for Afghanistan and Chechnya?
Re4. : definition of terrorism is the s.1 TA 2000, would the use of force by Coalition forces be classed as terrorism?"
The issues raised by these questions had not been dealt with in the evidence or the summing up. The judge heard submissions. He then told the jury that to answer the questions fully, further evidence would have been needed, but the time for evidence had passed. As to the first question, he told them it was not necessarily encouraging an act of terrorism to encourage a resident of Gaza to blow up an Israeli helicopter:
"If Israel was taking part in an incursion, Operation Cast Lead, which involved attacks on civilians, schools, hospitals and ambulances, then resistance to that would be reasonable self defence. It is for that reason that the prosecution do not ask for guilty verdicts if that is all that was being encouraged."
After telling the jury that the answer to questions 2 and 3 depended on the circumstances, he told them that there was an argument that an explosives attack on Coalition forces was not a terrorist attack if there was a state of armed conflict between the Coalition forces and others, as what exempted soldiers on one side or the other from liability for terrorism was "combatant immunity" when they were fighting a war. More evidence would be needed to answer the question fully. As to attacks on the police, he pointed out that that would make a difference, as when the videos were uploaded in 2008–9, the police were not combatants either in Iraq or Afghanistan. In answering question 4, he said:
"..the use of force by Coalition forces is not terrorism. They do enjoy combatant immunity, they are ordered there by our government and the American government, unless they commit crimes such as torture or war crimes. …"
The jury then asked a further question at the end of that day:
"Please confirm that within Iraq/Afghanistan now there are governments in place there cannot now be said to be in place a "conflict" and therefore no combatant exemption from what would otherwise be a terrorist attack, ie. IED on Coalition Forces. To simplify, would an IED attack (ignoring self defence) on Coalition Forces be a terrorist attack if carried out in 2008/9?"
After hearing further submissions, the judge answered the jury's question telling them that, although he had said on the day before he could not answer the question in a simple yes or no, in reality, he thought he could. After reminding them of the evidence that there were governments in place in Iraq and Afghanistan by 2008, he answered the question:
"I have to apply the Terrorism Act and the definition of terrorism which is part of English law, and the answer is "yes, it would". But it is ultimately for you to say."
The issue on the appeal is whether these answers to the jury's questions were correct for, later that same day, the jury returned verdicts of guilty on five of the counts. Those counts included (as we have mentioned) footage of attacks on Coalition forces; count 5 where the appellant was acquitted contained, as we have stated, footage relating to the Israeli/Palestinian war in Gaza.
The definition of terrorism in the Act
S.1 of the 2000 Act (as amended) defines terrorism:
"(1) In this Act "terrorism" means the use or threat of action where"
(a) the action falls within sub-section (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 sub-section 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 sub-section (2) which involves the use of firearms or explosives is terrorism whether or not sub-section (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
(d) "the government" means the government of the United Kingdom, or a Part of the United Kingdom or of a country other than the United Kingdom."
The definition is comprehensive in its scope; on its face, acts by insurgents against the armed forces of a state anywhere in the world which seek to influence a...
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