R v Gul

JurisdictionEngland & Wales
JudgeLord Kerr,Lord Neuberger,Lord Mance,Lord Hope,Lord Reed,Lord Judge,Lady Hale
Judgment Date23 October 2013
Neutral Citation[2013] UKSC 64
Date23 October 2013
CourtSupreme Court
R
and
Gul
(Appellant)

[2013] UKSC 64

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Hope

Lord Mance

Lord Judge

Lord Kerr

Lord Reed

THE SUPREME COURT

Michaelmas Term

On appeal from: [2012] EWCA Crim 280

Appellant

Tim Moloney QC

Tatyana Eatwell

(Instructed by Irvine Thanvi Natas)

Respondent

Sean Larkin QC

Prof Malcolm Shaw QC

Duncan Atkinson

(Instructed by CPS Appeals Unit)

Heard on 25 and 26 June 2013

Lord Neuberger and Lord Judge (with whom Lady Hale, Lord Hope, Lord Mance, Lord Kerr and Lord Reed agree)

1

This is an appeal brought by Mohammed Gul against a decision of the Court of Appeal (Criminal Division) dismissing an appeal against his conviction for dissemination of terrorist publications contrary to section 2 of the Terrorism Act 2006 ("the 2006 Act"), for which he was sentenced to a term of five years' imprisonment (a sentence against which he also unsuccessfully appealed). The appeal raises the issue of the meaning of "terrorism" in section 1 of the Terrorism Act 2000 ("the 2000 Act").

The factual and procedural background
2

The appellant was born in Libya in February 1988, but he has lived much of his life in this country and he is a British citizen. In February 2009, as a result of executing a search warrant at his house, police officers found videos on his computer uploaded onto various websites, including the YouTube website. These videos included ones that showed (i) attacks by members of Al-Qaeda, the Taliban, and other proscribed groups on military targets in Chechnya, and on the Coalition forces in Iraq and in Afghanistan, (ii) the use of improvised explosive devices ("IEDs") against Coalition forces, (iii) excerpts from "martyrdom videos", and (iv) clips of attacks on civilians, including the 9/11 attack on New York. These videos were accompanied by commentaries praising the bravery, and martyrdom, of those carrying out the attacks, and encouraging others to emulate them.

3

The case for the prosecution was that each of these videos constituted "a terrorist publication" within section 2(3), which the appellant had "distribute[d] or circulate[d]" within section 2(2)(a), and consequently he had committed an offence by virtue of section 2(1), of the 2006 Act. The appellant's principal defence was that, although he did not agree with the targeting of and attacks on civilians, he believed that the use of force shown in the other videos was justified as it was being employed in self-defence by people resisting the invasion of their country.

4

At his first trial, the jury acquitted the appellant on four counts and was unable to agree on two other counts. A retrial in relation to those two counts (plus a further four counts added by the Crown by way of a voluntary bill) took place in front of HH Judge Paget QC with a jury at the Central Criminal Court. After the evidence, speeches and summing up, the jury retired to consider their verdict in the normal way on 22 February 2011. They then asked the judge for guidance on certain questions relating to the meaning of terrorism, which, after hearing submissions from counsel, he answered.

5

One of the jury's questions was:

"Re: definition of terrorism in [section 1 of the 2000 Act], would the use of force by Coalition forces be classed as terrorism?"

In relation to that question, the judge gave the following direction:

"… the use of force by Coalition forces is not terrorism. They do enjoy combat immunity, they are ordered there by our government and the American government, unless they commit crimes such as torture or war crimes …".

6

Later the same day, the jury asked a further question, which was in these terms:

"Please confirm that within Iraq/Afghanistan now there are governments in place there cannot now be said to be 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?"

The judge answered this question, after hearing submissions from counsel, in these terms:

"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."

7

The jury then proceeded to convict the appellant on five of the six counts. The count on which he was acquitted related to a video which contained footage concerning the Israeli-Palestinian conflict in Gaza. The judge directed the jury that, if Israel was involved in an incursion into Gaza which involved attacks on civilians, schools, hospitals and ambulances, and all that the appellant was encouraging was resistance to these attacks, the prosecution did not seek a conviction. The present appeal proceeded without considering whether, as a matter of law, the stance adopted by the prosecution was correct, and we do not propose to address it further. The judge sentenced the appellant to five years' imprisonment, with appropriate allowance for time spent on remand.

8

The appellant sought to appeal against his conviction on a number of grounds, only one of which is relevant for present purposes. That ground, which was expressed in various ways during the course of his appeal, is ultimately embodied in the question which the Court of Appeal certified to be a point of general public importance, namely:

"Does the definition of terrorism in section 1 of the Terrorism Act 2000 operate so as to include within its scope any or all military attacks by a non-state armed group against any or all state or intergovernmental organisation armed forces in the context of a non-international armed conflict?"

9

The Court of Appeal (Sir John Thomas P, Silber and Kenneth Parker JJ) answered that question in the affirmative, and also rejected certain other grounds of appeal, as well as refusing to interfere with the sentence which the judge had imposed. Accordingly, the appellant's appeal was dismissed – [2012] EWCA Crim 280, [2012] 1 WLR 3432.

10

The appellant now appeals to this court contending that the answer to the certified question should be in the negative.

The Terrorism Acts 2000 and 2006
11

Section 1 of the 2000 Act is headed "Terrorism: Interpretation", and, as amended by the 2006 Act and the Counter-Terrorism Act 2008, it provides as follows:

"(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.

….

(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."

12

Part II of the 2000 Act is concerned with "proscribed organisations" and Part III with "terrorist property". Part III creates certain offences, such as (in sections 15–18) terrorist fundraising, using money and money-laundering for terrorist purposes. It also imposes certain duties, such as a duty of disclosure in some circumstances, a duty not to tip off, and a duty to cooperate with the police and certain government agencies, such as the Serious Organised Crime Agency. It also granted certain powers to the police and such agencies, such as the right to detain, seize, and forfeit "terrorist cash". Parts IV and V of the 2000 Act are respectively concerned with "terrorist investigations" and "counter-terrorist powers". Part V confers powers to stop and search (sections 44–47), to search individuals and premises (sections 42–43), and to arrest without warrant (section 41), and section 53 and Schedule 7 grant very wide powers to detain, interrogate, and confiscate in relation to people at ports and borders. Part VI of the 2000 Act is entitled " Miscellaneous", and it creates a number of offences related to terrorism -including weapons training in connection with terrorism (section 54), directing terrorist organisations (section 56), possession for terrorist purposes (section 57), collecting information for such purposes (section 58), and inciting terrorism abroad (section 59).

13

Included in Part VI are sections 62–64. Section 62(1) provides that:

"If-

(a) a person does anything outside the United Kingdom as an act of terrorism or for the purposes of terrorism, and

(b) his action would have constituted the commission of one of the offences listed in subsection (2) if it had been done in the United Kingdom,

he shall be guilty of the offence"

Subsection (2) states that the offences referred to in subsection (1) are offences under the Explosive Substances Act 1883, the Biological Weapons Act 1974, and the Chemical Weapons Act 1996.

14

Section 63 of the 2000 Act renders it an offence for a person to conduct an activity outside the UK which would be an offence under sections...

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