| Crime — Terrorism — Collection of information for terrorist purposes — Defendant charged with possessing document likely to be useful to person planning terrorist act — Whether document having to provide practical assistance — Whether mere encouragement sufficient — Terrorism Act 2000 (c 11), s 58
R v K [2008] EWCA Crim 185; [2008] WLR (D) 47
CA: Lord Phillips of Worth Matravers CJ, Owen and Bean JJ: 13 February 2008
The offence of possessing a document containing information “of a kind likely to be useful to a person committing or preparing an act of terrorism” was only committed if the document concerned was of a kind that was likely to provide practical assistance to such a person, rather than simply encouraging the commission of terrorist acts.
The Court of Appeal, Criminal Division, so held in dismissing an interlocutory appeal by K, who was charged with three counts of possessing a document or record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, contrary to s 58 of the Terrorism Act 2000, against the refusal of Judge Stewart QC, at a preparatory hearing at the Crown Court at Leeds on 4 January 2008, to stay the prosecution as an abuse of process.
S 58 of the 2000 Act provides: “(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. ... (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. ...”
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that the defendant submitted that s 58 of the 2000 Act was insufficiently certain to comply with the common law or with art 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In their Lordships judgment, a document or record would only fall within s 58 if it was of a kind that was likely to provide practical assistance to a person committing or preparing an act of terrorism. A document that simply encouraged the commission of acts of terrorism did not fall within s 58. The natural meaning of s 58 required that a document or record that infringed it must contain information of such a nature as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism. It must be information that called for an explanation. Thus the section placed on the person possessing it the obligation to provide a reasonable excuse. Extrinsic evidence could be adduced to explain the nature of the information. What was not legitimate under s 58 was to seek to demonstrate, by reference to extrinsic evidence, that a document, innocuous on its face, was intended to be used for the purpose of committing or preparing a terrorist act. As for the nature of a “reasonable excuse”, that was simply an explanation that the document or record was possessed for a purpose other than to assist in the commission or preparation of an act of terrorism. It mattered not that that other purpose might infringe some other provision of the criminal or civil law. If s 58 was interpreted in such a way its effect would not be so uncertain as to offend against the doctrine of legality. It followed that the prosecution did not involve an abuse of process on that ground. The defendant had also submitted that the proceedings should be stayed on the ground of abuse of process because the documents to which the counts related were propaganda and s 58 was never intended to cover propaganda. That was not an appropriate ground on which to seek a stay for abuse of process. The nature of at least some of the information that formed the subject matter of the three counts was in issue. It might be that, in the light of the present judgment, one or more of the documents to which the counts related was not in law capable of falling within the section. Should the defendant contend that that was the case, it might be appropriate for that issue to be resolved before a jury was empanelled. |
