R v ZAFAR AND OTHERS, R v K
Court of Appeal, Criminal Division
Lord Phillips CJ, Owen and Bean JJ
13 February 2008
Section 57 of the Terrorism Act 2000 (TA 2000) has to be interpreted in a way which requires a direct connection between the object possessed and the act of terrorism.
Joel Bennathan QC (assigned by the registrar of criminal appeals) for the first defendant.
Nigel Peters QC (assigned by the registrar of criminal appeals) for the second defendant.
Michel Massih QC (assigned by the registrar of criminal appeals) for the third defendant.
Jim Sturman QC (assigned by the registrar of criminal appeals) for the fourth defendant.
David Gottlieb (assigned by the registrar of criminal appeals) for the fifth defendant.
Andrew Edis QC and Jonathan Rees (instructed by the Crown Prosecution Service) for the Crown.
The defendants were tried on an indictment alleging offences contrary to s 57 of TA 2000, namely of possessing articles for a purpose connected with the commission, preparation or instigation of an act of terrorism. Those articles were documents, compact discs or computer hard drives upon which material had been electronically stored. The material included ideological propaganda as well as communications between the defendants and others, which the prosecution alleged showed a settled plan under which the defendants would travel to to receive training and thereafter commit a terrorist act or acts in .
The defendants were convicted. They appealed against conviction. Their principal submission was that an offence could only be committed under s 57 if there was a direct connection between the article possessed and an intended act of terrorism, and no such connection had been established in their case. They further submitted that the judge had failed adequately to direct the jury as to the necessary connection between the articles in their possession and the alleged acts of terrorism.
LORD CHIEF JUSTICE PHILLIPS (GIVING THE JUDGMENT OF THE COURT):
Section 57 provided, so far as material:
“(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 a 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.”
The prosecution accepted in this case that, by the end of the evidence, each of the defendants had adduced evidence that sufficed to raise the issue as to whether or not his possession of the relevant article or articles was for a purpose connected with the commission, preparation or
instigation of an act of terrorism. That accordingly became a matter that the prosecution had to prove beyond reasonable doubt. “Terrorism” was defined by TA 2000, s 1 as including the use of firearms or explosives that endangered life for the purpose of advancing a political, religious or ideological cause. The articles that the prosecution alleged that the defendants possessed in breach of s 57 were, for the most part, computer discs or drives on which information was stored. The intended acts of terrorism consisted of fighting against the government in . The critical issue that arose on the facts was whether or not there existed, between the articles and the acts of terrorism, a connection that satisfied the requirements of s 57.
No problem arose in respect of the phrase “possession for a purpose connected with the commission, preparation or instigation of an act of terrorism” where the article possessed was an article such as was intended to be incorporated in a bomb, or used as an ingredient of explosives designed for an act of terrorism.
Literature
In this case the articles possessed by the defendants stored literature. The prosecution proceeded on the basis that the purpose for which the articles were possessed depended upon the use that the defendants intended to make of the literature stored on them.
Literature might be stored in a book on a bookshelf, or on a computer drive, without any intention on the part of the possessor to make any future use of it at all. His lordship concluded that s 57 had to be interpreted in a way that required a direct connection between the object possessed and the act of terrorism. The section should be interpreted as if it read:
“A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that he intends it to be used for the purpose of the commission, preparation or instigation of an act of terrorism.”
His lordship concluded that possessing a document for the purpose of inciting a person to commit an act of terrorism fell within the ambit of s 57. Section 57 had to be construed having regard to the normal meaning of instigate. The hesitation came from the belief that Parliament did not envisage that s 57 would extend to possessing propaganda for the purpose of incitement to terrorist acts. That belief was strengthened by the fact that Parliament had considered it desirable to legislate in relation to possessing propaganda with the intention of inducing acts of terrorism by s 2(2)(f) of the Terrorism Act 2006.
It was the prosecution’s case that it would suffice if the relevant material was “for a purpose connected with” the travel to Pakistan. His lordship held that such a connection would not satisfy the requirements of s 57. His lordship turned to the question of whether or not there had been a case to go to the jury.
While there was support for the prosecution’s case that the defendants had formed a plan to go to Pakistan to train and then to Afghanistan to fight, there was nothing that evidenced expressly the use of, or intention to use, the extremist literature to incite each other to do so. It was doubtful whether there was a case of infringement of s 57 that could properly have been left to the jury.
His lordship turned to the directions to the jury. It was not possible to spell out from the relevant passages a direction to the jury that they had to be satisfied that each defendant possessed the relevant articles for the purpose of inciting the others to commit acts of terrorism, namely fighting against government forces in .
The impression that the summing up gave was that the most critical issue was whether each defendant was party to a plan to travel to to train, and thereafter if necessary to fight. Those directions were not adequate. They did not tell the jury that they had to be satisfied that each defendant intended to use the relevant articles to incite his fellow planners to fight in .
The appeals would be allowed.
