Court of Appeal, Criminal Division
Published February 15, 2008
Regina v Zafar Regina v Malik Regina v Raja Regina v Iqbal Regina v Butt
Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Owen
and Mr Justice Bean
Judgment February 13, 2008
A person possessed an article for terrorist purposes only if he possessed it
in circumstances which gave rise to a reasonable suspicion that he intended
it to be used for the purpose of the commission, preparation or instigation
of an act of terrorism.
Possessing a document for the purpose of inciting another person to commit an
act of terrorism constituted possessing an article for terrorist purposes.
The Court of Appeal, Criminal Division, so held in a reserved judgment,
allowing appeals by Aitzaz Zafar, Usman Malik, Mohammed Raja, Awaab Iqbal
and Akbar Butt against their convictions at the Central Criminal Court
(Judge Beaumont, QC and a jury) on July 24 and 25, 2007 for possessing an
article for terrorist purposes, contrary to section 57(1) of the Terrorism
Act 2000.
Section 57 of the 2000 Act provides: “(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...”
Mr Joel Bennathan, QC and Mr Mahmud Al-Rashid for Zafar; Mr
David Gottlieb and Mr Faisal Saifee for Malik; Mr James
Sturman, QC, for Raja; Mr Michel Massih, QC, for Iqbal; Mr
Nigel Peters, QC, for Butt, all appellants’ counsel assigned by the
Registrar of Criminal Appeals; Mr Andrew Edis, QC and Mr
Jonathan Rees for the prosecution.
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the
articles in question were documents, compact discs or computer hard drives
on which material had been electronically stored.
The material included ideological propaganda as well as communications between
the appellants and others which the prosecution alleged showed a settled
plan under which the appellants would travel to Pakistan to receive training
and thereafter commit a terrorist act or acts in Afghanistan.
Four of the appellants were students and the fifth was a schoolboy.
The critical issue that arose was whether there existed between the articles
and the acts of terrorism a connection that satisfied the requirements of
section 57.
There had been considerable debate as to the effect of the words “connected
with” in section 57.
If section 57 was to have the certainty of meaning that the law required, it
must 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: “(1) 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.”
The prosecution submitted that the instigation of an act of terrorism embraced
incitement to commit an act of terrorism, that each appellant had used and
intended to use the literature in his possession to incite both himself and
his fellow planners to commit acts of terrorism and thus the requirements of
section 57 were satisfied.
Not without hesitation, their Lordships had concluded that possessing a
document for the purpose of inciting a person to commit an act of terrorism
fell within the ambit of section 57.
Their Lordships had considered the definition of “instigate” in a number of
dictionaries and, in each case, had found the word “incite” as a synonym.
Section 57 must be construed having regard to the normal meaning of
“instigate”.
The hesitation came from the belief, founded on a body of material drawn to
the court’s attention that was not strictly admissible as an aid to
statutory construction, that those responsible for section 57, including
Parliament, did not envisage that it would extend to possessing propaganda
for the purpose of incitement to terrorist acts.
That belief was strengthened by the fact that Parliament considered it
desirable to legislate in relation to possessing propaganda with the
intention of inducing acts of terrorism by section 2(2)(f) of the Terrorism
Act 2006.
Was there evidence before the jury that left it open to them to conclude that
the appellants possessed the drives and discs for the purpose of instigating
acts of terrorism?
The prosecution had gone through the literature and communications at some
length. While they lent support to the prosecution case that the appellants
had formed a plan to go to Pakistan to train and then to Afghanistan to
fight, there was nothing that evidenced expressly the use, or intention to
use, the extremist literature to incite each other to do that.
It was doubtful whether there was a case of infringement of section 57 that
could properly have been left to the jury.
Further, it was not possible to spell out from the summing up a direction to
the jury that they had to be satisfied that each appellant possessed the
relevant articles for the purpose of inciting the others to commit acts of
terrorism, namely fighting against government forces in Afghanistan.
The impression that the summing up gave was that the most critical issue was
whether each appellant was party to a plan to travel to Pakistan, there to
train and thereafter if necessary to fight.
Once the plan was proved, the summing up suggested that the jury had to be
satisfied that the planners intended to use the extremist material to
sustain their enthusiasm and resolve to “hype each other up” in modern
parlance. If they were so satisfied, the infringement of section 57 was
proved.
Those directions were not adequate. They did not tell the jury that they had
to be satisfied that each appellant intended to use the relevant articles to
incite his fellow planners to fight in Afghanistan.
An unusual feature of the case was that the appellants had already used the
relevant articles for the purpose for which they possessed them.
The alleged infringement of section 57 consisted of an intention to continue,
in the future, to use the extremist material in the same way that they had
already been using it.
It was not made plain to the jury, whether by the prosecution or by the judge,
that the case that the appellants had to face was that they possessed the
extremist material for use in the future to incite the commission of
terrorist acts.
Their Lordships doubted whether the evidence supported such a case.
Difficult questions of interpretation had been raised in the present case by
the attempt by the prosecution to use section 57 for a purpose for which it
was not intended.
The judge had understandably sought to apply that section in accordance with
the wide scope suggested by its wording. That wording must be given a more
restricted meaning.
The basis upon which the appellants were convicted was unsound and their
convictions were quashed.
Solicitors: Crown Prosecution Service, Ludgate Hill.
