R v K
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS CJ |
| Judgment Date | 13 February 2008 |
| Neutral Citation | [2008] EWCA Crim 185 |
| Docket Number | Case No: 200800344C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 February 2008 |
[2008] EWCA Crim 185
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Stewart QC
In the Crown Court at Leeds
The Lord Chief Justice of England and Wales
The Honourable Mr Justice Owen and
The Honourable Mr Justice Bean
Case No: 200800344C5
Mr T. Moloney for the Appellant
Mr J. G. J. Sharp for the Respondent
Hearing dates: 5th and 6th February 2008
The appellant, “K” is charged on an indictment containing three counts, each alleging an offence contrary to section 58 of the Terrorism Act 2000. On 4 January 2008 he appeared before HHJ Stewart QC at the Crown Court at Leeds where in the course of a preparatory hearing it was submitted on his behalf that the continued prosecution of the indictment against him amounted to an abuse of the process of the court. The learned judge rejected the submission, and on 15 January refused an application for leave to appeal his ruling. The appellant then sought the leave of this court to appeal against the ruling. The registrar referred the leave application to the full Court, and directed that it be listed for hearing with the appeal of Aitzaz Zafar and others. At the outset of the hearing we gave permission to appeal.
Sections 58 and 118 of the Terrorism Act 2000 are, so far as is relevant, in the following terms –
“58 (1) A person commits an offence if –
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.
118 (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 proves beyond reasonable doubt that it is not.
(3) Subsection (4) applies where in accordance with a provision mentioned in subsection (5) a court –
may make an assumption in relation to a person charged with an offence unless a particular matter is proved, or
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 reasonable doubt.
(5) The provisions in respect of which subsections (2) and (4) apply
[include sections 57 and 58].”
Count 1 of the indictment alleges that on 17 July 2005 the appellant “possessed records containing information of a kind likely to be useful to a person committing or preparing an act of terrorism, namely a CD rom containing a copy of the Al Qaeda training manual”. Count 2 charges the appellant with possession of a copy of a publication called 'Zaad-e-Mujahid' on 9 May 2007, count 3 with possession of a copy of another publication, 'The Absent Obligation', on the same date. Each is alleged to 'contain information likely to be useful to a person committing or preparing an act of terrorism'.
The title of the material the subject of the first count speaks for itself. Zaad-e-Mujahid is a text directed to the formation and organisation of Jihaad movements, to the training requirements for the armed wing of Jihaad movements and to the 'Attributes and Qualities of Mujahideen'. The Absent Obligation is in simple terms a text which argues that a Muslim is under an obligation to work for the establishment of an Islamic State.
It was submitted before the judge that section 58 is insufficiently certain to comply with the common law or with Article 7 of the European Convention on Human Rights, secondly that section 58 was never intended to cover the possession of theological or propagandist material such as Zaad-e-Mujahid or The Absent Obligation. We have the benefit of a note of the learned judge's ruling. He ruled in relation to the first submission that 'likely to be useful to' and 'reasonable excuse' are normal everyday terms, that a jury would be perfectly able to determine whether the material, the subject of the counts in the indictment, was material likely to be useful to a terrorist, and possessed by the appellant without reasonable excuse, and that accordingly the offence was sufficiently certain. As to the second submission, the note of his ruling is in the following terms –
“Whether possession of the article crosses the line into illegality depends on the circumstances of the case and is all about the context in which it is found. That is a matter for a jury to decide in each case and not me. Here, the material, the prosecution submit is material capable of amounting to use for a terrorist without reasonable excuse. Whether a jury so find is a matter for them. Counts 2 and 3, the material may be innocent in itself…”
In his challenge to the ruling, Mr Moloney, who also appeared for the appellant before HHJ Stewart QC, again submitted that that section 58 was insufficiently certain, and that in any event it was never intended to criminalise the possession of theological or propagandist material.
As to the issue of certainty, he invited our attention to the speech of Lord Bingham of Cornhill in R v Rimmington [2006] 1 AC 459 in which the relevant principles were addressed at paragraphs 32 – 35. In essence Mr Moloney submitted that section 58 is insufficiently certain in its terms for a person to able to regulate his conduct, even with appropriate advice, so as to ensure that he does not fall foul of the criminal law. He argued that the term 'likely to be of use to' is so broad, so undefined in common law or statute, as to criminalise the possession of a myriad items of information. He sought to support his argument by reference to the factual background to the proceedings. The appellant was not initially charged in relation to the material the subject of counts 2 and 3, the additional charges...
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