Mohammed Atif Siddique V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Osborne,Lord Reed |
| Judgment Date | 29 January 2010 |
| Neutral Citation | [2010] HCJAC 7 |
| Published date | 29 January 2010 |
| Date | 29 January 2010 |
| Court | High Court of Justiciary |
| Docket Number | No 13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lord Reed Lord Clarke | [2010] HCJAC 7 Appeal No. XC878/07 OPINION OF THE COURT delivered by LORD OSBORNE In NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by MOHAMMED ATIF SIDDIQUE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the appellant: D Findlay, Q.C.; Ram; Aamer Anwar & Co, Glasgow
For the Crown: D Ogg QC, A.D.; Crown Agent
29 January 2010
The background circumstances
[1] On 17 September 2007, at the High Court at Glasgow, the appellant was convicted on charges (1), (3), (4) and (5) in the indictment that he faced, which were subject to certain deletions and amendments. The terms of the charges on which the appellant was convicted were as follows:
"(1) between 1 March 2003 and 13 April 2006, both dates inclusive, at 4 Myretoungate, Alva, Clackmannanshire; Ibrox Public Library and Glasgow Metropolitan College, both Glasgow, at Glasgow Airport, Renfrewshire and elsewhere to the Prosecutor unknown, you did possess articles in circumstances which give rise to a reasonable suspicion that your possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism, namely, computers, computer files, video files, pictures and sound files and other files; a memory card containing computer files; mobile phones containing files and photographic images; a number of CDs and floppy disks containing computer files and audio files, video files and word documents depicting amongst other things terrorist propaganda, instructions and information on making bombs, the use of various weapon systems, terrorist and guerilla tactics, surveillance techniques, suicide and sacrificial operations and terrorist training camps: CONTRARY to the Terrorism Act 2000, section 57(1) as amended;
....
(3) on various occasions between 1 September 2003 and 30 September 2005 at Glasgow Metropolitan College, Glasgow, you did conduct yourself in a disorderly manner and did show to various students there images of suicide bombers and images of the murder and beheading of persons by terrorists, threaten to become a suicide bomber and carry out acts of terrorism in Glasgow or elsewhere, place said students in a state of fear and alarm and commit a breach of the peace;
(4) between 1 September 2003 and 13 April 2006, both dates inclusive, at 4 Myretoungate, Alva, Clackmannanshire, Ibrox Public Library and Glasgow Metropolitan College, Glasgow and elsewhere to the prosecutor unknown you did provide instruction or training in the making or use of firearms and explosives by means of the Internet in that you did set up, manage and control websites namely www.freewebs.com/al-battar, www.freewebs.com/sout-al-jihad and www.freewebs.com/muaskar-al-battar containing links to documents providing instructions on how to operate various weaponry and to make explosives and further, containing links to other websites containing similar documents: CONTRARY to the Terrorism Act 2000, section 54(1) as amended; and
(5) on 13 April 2006, at 4 Myretoungate, Alva, Clackmannanshire, and elsewhere to the prosecutor unknown you did distribute or circulate terrorist publications by means of websites previously set up by you, namely, www.freewebs.com/al-battar, www.freewebs.com/sout-al-jihad and www.freewebs.com/muaskar-al-battar containing links to terrorist publications with the intention that the effect of said distribution and circulation be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or the provision of assistance in the commission or preparation of such acts or you were reckless as to whether your conduct had an effect abovementioned: CONTRARY to the Terrorism Act 2006, section 2(1)".
Charge (2) in the indictment alleged a contravention of section 58(1)(a) of the Terrorism Act 2000, "the 2000 Act", namely collecting or making a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the jury had been charged to the effect that charge (2) was an alternative to charge (1) and that, in the event of the jury convicting on charge (1), which they did, they would not require to consider and return a verdict on charge (2).
[2] On 23 October 2007 the appellant was sentenced to 6 years' imprisonment in respect of charge (1), ordered to run from 13 April 2006; 6 months' imprisonment in respect of charge (3); 2 years' imprisonment in respect of charge (4) and one year's imprisonment in respect of charge (5). The period of imprisonment imposed on charge (3) was ordered to run concurrently with that on charge (1); the periods imposed on each of charges (4) and (5) were ordered to run concurrently but to run consecutively to the period imposed on charge (1).
The grounds of appeal
[3] On 17 April 2008, the appellant lodged a Note of Appeal against both conviction and sentence. Leave to appeal has been granted in respect of grounds (2), (3) and (4), as regards conviction, and also in respect of sentence. The grounds of appeal in respect of which leave to appeal has been granted are in the following terms:
"(2) Misdirection
The learned trial judge in his directions to the jury quoad charge (1) failed to adequately direct the jury that they had to be satisfied that the appellant possessed the articles in circumstances that gave rise to a reasonable suspicion that he intended that they be used for the purposes of the commission, preparation or instigation of an act of terrorism. The learned trial judge failed to adequately direct the jury that they had to distinguish and discriminate between 'propaganda or ideological material' and other material in the possession of the appellant when assessing the Crown case. The learned trial judge in directing the jury, failed to adequately make clear that they had to be satisfied that there was a direct connection between the articles possessed by the appellant and an intended act of terrorism. Reference is made to the case of Zafar v R [2008] E.W.C.A. Crim.184.
At page 108 the learned trial judge invited the jury to speculate as to the extent to which a young Scottish Muslim would have an interest in Middle Eastern politics or religion. To invite the jury to speculate in this way amounted, of itself, to a material misdirection.
The Crown led evidence from Evan Kholman. Said witness was designed in the indictment as an 'International Terrorism Consultant' and was responsible for the production of Crown production 4. A copy of Crown production 4 is attached to this Note of Appeal at Appendix 3. Crown production 4 makes reference to and provides opinion evidence of the articles that the Crown relied upon in seeking a conviction. Under reference to the case of R v K [2008] E.W.C.A. Crim.185, it is submitted that the trial judge misdirected the jury in the course of his charge by directing them that in assessing the question of whether the appellant's possession of the articles was for a purpose connected with the commission, preparation or instigation of an act of terrorism they (the jury) were entitled to take into account the opinion evidence of Evan Kholman. The evidence of Evan Kholman was under reference to R v K 'extrinsic evidence' and the trial judge should have directed the jury accordingly.
The failure to do so resulted in inadequate and inappropriate directions being provided to the jury as a result of which the appellant did not receive a fair trial.
(3) Reasonable excuse
Section 58(3) of the Terrorism Act 2000 provides for a statutory defence of reasonable excuse. The trial judge misdirected the jury as to what amounted to a reasonable excuse. Reference is made to the trial judge's charge at pages 62 et seq and page 108. It is submitted that the directions provided to the jury in relation to what in fact could amount to a reasonable excuse were too narrow. Under reference to R v K all that is required to establish a reasonable excuse is that an individual possessed the document or record for a purpose other than to assist in the commission or preparation of an act of terrorism.
(4) Unbalanced charge
The learned trial judge having decided it was appropriate to rehearse the evidence, failed to present a balanced picture. In particular: (i) he rehearsed in detail the evidence relied upon by the Crown in sharp contrast to the evidence relied upon by the defence; as an illustration reference is made to page 117 of the learned trial judge's charge. The learned trial judge (at pages 90 to 100) gave an extensive recital of the Crown documents, rehearsing titles and contents before summarising same. No such rehearsal was presented to the jury in the Crown speech where minimal reference to these documents was made. The learned trial judge's reference to defence case extended to a mere 41/2 pages".
The evidence led at the trial
[4] It may fairly be said that the evidential basis for the appellant's convictions, as described in the report to this court by the trial judge, is somewhat diffuse. A prominent source of evidence for the Crown came from Evan Kholman, a skilled witness possessing expertise entitling him to give opinion evidence on the situation in the Middle East and beyond. He is an American who described himself as an international terrorism consultant, holding a degree in international politics from the Edmund Walsh School of Foreign Service at Georgetown University and a jurist doctorate from the Law School at Pennsylvania University. He also holds a certificate in Islamic Studies from the Prince Alwaleed bin Tallal Centre for Muslim-Christian Understanding, also at Georgetown University. He had given published evidence to the United States Congress on terrorism and had studied that subject for 10 years. He was the author of a book entitled "Al Qaida Jihad in Europe the Afghan-Bosnian Network". He had become a consultant in 2004, having been a research...
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