R v Rowe (Andrew)
| Jurisdiction | England & Wales |
| Judgment Date | 15 March 2007 |
| Neutral Citation | [2007] EWCA Crim 635 |
| Docket Number | Case No: 200505209 C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 March 2007 |
[2007] EWCA Crim 635
The Lord Chief Justice of England and Wales
The Right Honourable Lord Justice Latham
The Honourable Mr Justice Cresswell
The Honourable Mr Justice Holland and
The Honourable Mr Justice Burton
Case No: 200505209 C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice Fulford
Sitting at The Central Criminal Court
T20040020
Royal Courts of Justice
Strand, London, WC2A 2LL
M. Mansfield QC and R. Menon for the Appellant
M. Ellison and J. Rees for the Respondent
Hearing dates: Wednesday 21st February 2007
Lord Phillips CJ:
On 23 September 2005 in the Central Criminal Court before Fulford J the appellant was convicted of two counts of possessing an article for terrorist purposes contrary to section 57 (1) of the Terrorism Act 2000 ('the 2000 Act'). On the same day he was sentenced to 7 1/2 years imprisonment on each count, the sentences to be served consecutively. On 18 October 2006 the full court, presided over by the Vice President gave him permission to appeal against conviction and referred his application to appeal against sentence to us. We gave him permission to appeal against sentence at the beginning of the hearing.
The prosecution offered no evidence in relation to one of the two parallel charges under section 58; and no verdict was taken as to the other which was ordered to lie on the file. The jury failed to agree on a verdict in respect of a further count which charged breach of section 57 in respect of a modified sock ball. The prosecution did not seek a retrial on this count and a verdict of not guilty was entered by order of the judge.
The appeal against conviction
Section 1 of the 2000 Act defines terrorism as follows:
“1. – (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 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 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.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1) (b) is satisfied.
(4) In this section—
(a) 'action' includes action outside the United Kingdom.”
This appeal requires consideration not just of section 57 but also of section 58 of the 2000 Act. The two sections provide, in so far as material, as follows:
“57. – (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 the 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.
(4) A person guilty of an offence under this section shall be liable –
(a) on conviction on indictment, to imprisonment for a term no exceeding 10 years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term no exceeding six months, to a fine not exceeding the statutory maximum or both.
58. – (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.
(4) A person guilty of an offence under this section shall be liable—
(a)on conviction on indictment, to imprisonment for a term not exceeding 10 years, to a fine or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.”
The maximum sentence for breach of section 57 was increased, after the appellant's conviction, by section 13 of the Terrorism Act 2006, from 10 to 15 years.
Both sections have to be read subject to section 118 of the 2000 Act, which provides:
“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 –
(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 reasonable doubt.
(5) The provisions in respect of which subsections (2) and (4) apply are—
(a) sections….57, 58….of this Act.”
The facts
The article the possession of which was the subject of the first count was a W.H. Smith notebook containing manuscript notes that included instructions on how to assemble and operate a mortar. It was accepted that the handwriting was that of the appellant. The article the possession of which was the subject of the second count was a substitution code, found in a video case. This code set out a list that included articles or places, each bearing a code that consisted of a particular model of mobile phone. The articles included components of explosives. The places included the type of venue susceptible to terrorist bombing, such as 'airport', 'army bases'. The list also included 'Target 1, Target 2, Target 3. There was a second list of countries, 'Bosnia, Poland, Romania, Bulgaria, Albania, Czechoslovakia, Hungary and Yugoslavia', against each of which was an English county, by way of code. The code was in the handwriting of the appellant.
The most recent of the phone models used as code was manufactured in 2003, which demonstrated that the code had come into existence in or after March 2003.
The appellant is married, but he did not live with his wife and children. The W.H.Smith notebook was found at the address where the appellant had lived in London. The substitution code was found in the house where his wife and children lived in Birmingham. The appellant accepted that both articles were in his 'possession' for the purposes of section 57. Media found at the Birmingham house included videos espousing and promoting the ideological and religious cause followed by Muslim extremists who believe that it is their duty to wage a Jihad against perceived enemies of Islam. They included the living wills of the 9/11 attackers.
The appellant was arrested at Coquelles in France on 24 October 2003 as he tried to enter the United Kingdom on a coach bound for Victoria Station, London. It was the prosecution case that the appellant was shortly to embark on a terrorist venture and that both the notebook and the substitution code were held for terrorist purposes.
The appellant gave evidence. He had given no advance notice of the explanation that he advanced for his possession of the notebook and the substitution code. He said that he was not a terrorist and that the videos that had been found in his wife's house at Birmingham were nothing to do with him and contained matter that was abhorrent to him. Far from being involved in offensive activities he had been involved in lawful defence of Muslims who were being exposed to unlawful violence and atrocities in Bosnia and Chechnya.
So far as the W.H. Smith notebook and its contents were concerned, the origin of these was a trip that he had made to Croatia in 1995 to help the Muslims to defend themselves against the Serbs. He crossed into Bosnia to see evidence of Serb atrocities. He stayed in a house that was a base for a military unit and there made notes from a book that provided instructions in relation to the use of artillery. He was subsequently injured when a convoy in which he was travelling was blown up. He returned to England, with the notes that he had made, and transcribed them into the W.H.Smith notebook as a memento of his experience. He had not intended to make any use of the notes other than as memorabilia that might impress his friends.
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