Court of Appeal Criminal Division
Published February 20, 2007
Regina v F (Terrorism)
Before Sir Igor Judge, President, Mr Justice Forbes and Mr Justice Irwin
Judgment February 16, 2007
The United Kingdom’s antiterrorist legislation sought to protect governments
of other countries as well as this one, even those governed by tyrants and
dictators, from terrorist activities organised and planned here. There was
no exemption from criminal liability for activities which were motivated or
said to be morally justified by the alleged nobility of the antigovernment
cause.
The Court of Appeal, Criminal Division, so held when dismissing an appeal by
the defendant, F, against a ruling made on January 25, 2007, by Mr Justice
Mackay at Woolwich Crown Court following a preparatory hearing under section
29 of the Criminal Procedure and Investigations Act 1996, in connection with
two offences alleged to have been committed by the defendant contrary to
section 58(1)(b) of the Terrorism Act 2000.
The judge ruled that: (i) that the meaning of “terrorism” in the 2000 Act
included the use or threat of violent action even against countries which
were governed by tyrants or dictators; and (ii) that as a matter of law the
defendant was not entitled to argue that the defence in section 58(3) of
that Act permitted him to advance a reasonable excuse for the possession of
the documents in question that they originated as part of an effort to
change an illegal or undemocratic regime.
Section 1 of the 2000 Act provides:
“(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, (b) a reference to any person or to property is a reference to any
person, or to property, wherever situated, (c) a reference to the public
includes a reference to the public of a country other than the United
Kingdom, and (d) ‘the government’ means the government of the United
Kingdom, of a part of the United Kingdom or of a country other than the
United Kingdom.”
Section 58 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.”
Mr Geoffrey Robertson, QC and Mr Azeem Suterwalla for the
defendant; Mr David Perry QC, Mr Nicholas Hilliard and Miss
Rose-Marie Franton, solicitor, for the Crown; Mr Keir Starmer, QC,
made written submissions on behalf of Justice.
THE PRESIDENT, giving the reserved judgment of the court, said that the
defendant was a native of Libya who had been granted asylum by the United
Kingdom in 2003.
In October 2005 his accommodation in England was raided and he was arrested
and charged with offences contrary to section 58(1)(b) of the 2000 Act. He
was alleged to have been in possession of documents or records containing
information of a kind likely to be useful to a person committing or
preparing an act of terrorism.
When construing section 1 of the 2000 Act, their Lordships accepted Mr
Robertson’s submission that they should bear in mind that the antiterrorism
legislation as a whole created serious inroads into and restrictions on
what, in this country, had for many years been regarded as inalienable
freedoms.
As the argument advanced it became clear that, despite the commonality of view
that terrorism was detestable, subtle refinements and differences about its
true meaning could legitimately arise for discussion and much thought had
been given to the right to rebel against a tyrannous or unrepresentative
regime.
Their Lordships noted, as a matter of historical knowledge, that many of those
whose violent activities in support of national independence or freedom from
oppression, who were once described as terrorists, were now hon-oured as
freedom fighters.
It was clear that section 1 sought to protect governments of countries other
than the United Kingdom from terrorist activities organised and planned here.
But Mr Robertson argued that Mr Justice Mackay’s interpretation of section 1
had produced a result which meant that Parliament deviated from its
obligation under the European Convention on Human Rights, and international
law, by treating as terrorists individuals who opposed regimes in countries
subject to dictators, and invaders, and indeed to regimes which were denied
recognition in the United Kingdom or were involved in war or warlike
confrontation with the forces of the United Nations, Nato or indeed the
United Kingdom itself.
In their Lordships’ judgment, the meaning of the phrase “a country other than
the United Kingdom” in section 1(4)(d) was plain enough and they could see
no reason why, given the random impact of terrorist activities, the citizens
of Libya should not be protected from such activities by those resident in
this country in the same way as the inhabitants of The Netherlands or the
Republic of Ireland and there was nothing in the legislation which might
support that distinction.
The legislation did not exempt, nor make an exception, nor create a defence
for, nor exculpate what some would describe as terrorism in a just cause.
Such a concept was foreign to the Act. Terrorism was terrorism, whatever the
motives of the perpetrators.
If the prosecution were able to demonstrate that the activities and behaviour
of the defendant did indeed constitute the terrorist offences alleged again
him, the question then arose as to whether he had a reasonable excuse.
In their Lordships’ view the fundamental flaw with Mr Robertson’s submissions
was that they depended on the proposition that a reasonable excuse for
conduct which constituted a crime might be found in the commission of the
very crime prohibited by the statute.
If correct, that would introduce an impossible incoherence into the statutory
provisions. Their Lordships agreed with Mr Justice Mackay’s conclusion that,
as a matter of law, the defence under section 58(3) was not available to
achieve in effect a construction of the statute which was contrary to the
intention of Parliament which passed it.
Solicitors: Tyndallwoods, Birmingham; Crown Prosecution Service,
Headquarters.
Obviously it won't apply in circumstances of War
Hasan, Perth, Australia