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||Neutral Citation Number:  EWCA Crim 2650
||Case No: 2014/01692 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
His Honour Judge Kinch QC
T2013 0376; T2014 0288
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SHARP
MR JUSTICE IRWIN
MR JUSTICE WILLIAM DAVIS
|| Khuram Shazad Iqbal
||- and -
(Transcript of the Handed Down Judgment.
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Mr Nathan Rasiah (instructed by Davies and Jones) for the Applicant
Mr Roger Smart (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 23 May 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lady Justice Sharp:
- This application for permission to appeal against two preparatory rulings made by HH Judge Christopher Kinch QC was referred to the full court by the Registrar. After hearing full argument we announced that the application was refused. These are our reasons.
- The applicant, Khuram Shazad Iqbal, was charged with two offences. In count 1, he was charged with dissemination of terrorist publications contrary to section 2(1)(a) and (2)(c)(d) Terrorism Act 2006 (the 2006 Act); and in count 2, he was charged with possession of information, contrary to section 58(1)(b) of the Terrorism Act 2000 (the 2000 Act). He was due to be tried on those counts at Woolwich Crown Court on the 2nd June 2014.
- Section 2 of the 2006 Act, and section 58 of the 2000 Act provide in part as follows:
i) "2 Dissemination of terrorist publication
(1)A person commits an offence if he engages in conduct falling within subsection (2) and, at the time he does so—
(a) he intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism;
(b)he intends an effect of his conduct to be the provision of assistance in the commission or preparation of such acts; or
(c) he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b).
(2) For the purposes of this section a person engages in conduct falling within this subsection if he—
(a) distributes or circulates a terrorist publication;
(d) provides a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of a gift, sale or loan;
(e) transmits the contents of such a publication electronically; or
(f) has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e).
(3) For the purposes of this section a publication is a terrorist publication, in relation to conduct falling within subsection (2), if matter contained in it is likely—
(a) to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism; or
(b)to be useful in the commission or preparation of such acts and to be understood, by some or all of those persons, as contained in the publication, or made available to them, wholly or mainly for the purpose of being so useful to them.
(4)For the purposes of this section matter that is likely to be understood by a person as indirectly encouraging the commission or preparation of acts of terrorism includes any matter which—
(a)glorifies the commission or preparation (whether in the past, in the future or generally) of such acts; and
(b)is matter from which that person could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by him in existing circumstances.
(5)For the purposes of this section the question whether a publication is a terrorist publication in relation to particular conduct must be determined—
(a)as at the time of that conduct; and
(b)having regard both to the contents of the publication as a whole and to the circumstances in which that conduct occurs.
(6)In subsection (1) references to the effect of a person's conduct in relation to a terrorist publication include references to an effect of the publication on one or more persons to whom it is or may become available as a consequence of that conduct.
(7)It is irrelevant for the purposes of this section whether anything mentioned in subsections (1) to (4) is in relation to the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally.
(8)For the purposes of this section it is also irrelevant, in relation to matter contained in any article whether any person—
(a)is in fact encouraged or induced by that matter to commit, prepare or instigate acts of terrorism; or
(b)in fact makes use of it in the commission or preparation of such acts.
(9)In proceedings for an offence under this section against a person in respect of conduct to which subsection (10) applies, it is a defence for him to show—
(a)that the matter by reference to which the publication in question was a terrorist publication neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and
(b)that it was clear, in all the circumstances of the conduct, that that matter did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under subsection (3) of that section) did not have his endorsement.
(10)This subsection applies to the conduct of a person to the extent that—
(a)the publication to which his conduct related contained matter by reference to which it was a terrorist publication by virtue of subsection (3)(a); and
(b)that person is not proved to have engaged in that conduct with the intention specified in subsection (1)(a).
ii) "58. Collection of information.
(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.
(2)In this section "record" includes a photographic or electronic record.
(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…"
- Count 1 concerned activity on six Facebook accounts between 1 January and 8 October 2013 in which the applicant posted and shared videos, articles and lectures that it is alleged amount to glorification or encouragement of terrorism. Count 2 concerned 11 electronic files found on a laptop seized from his home, containing issues of "Inspire", an online magazine purportedly produced by Al Qaeda in the Arabian Peninsula, which the Crown alleged was aimed at Western Audiences; and Muslims seeking to research fundamentalist issues and practices and provided justification for taking up arms against Western interests and advice on how to train and make bombs.
- The particulars of count 1 were that between the 1 January 2013 and 8 October 2013 the applicant distributed or circulated terrorist publications, or circulated such publications electronically by making them available on Facebook internet pages, namely Abu Irhaab.948, Abu Irhaab.52, Abu Irhaab.351, Abu Irhaab.3990, Abu Irhaab.90 and Abu Irhaab.3576 and that he intended or was reckless as to whether an effect of his conduct would amount to direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism.
- The particulars of count 2 were that on the 8 October 2013, without reasonable excuse, the applicant was in possession of a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, namely an Acer laptop computer which contained documents entitled Inspire 1, Inspire 2, Inspire 3, Inspire 4, Inspire 5, Inspire 6, Inspire 8, Inspire 9 and Inspire 11.
- The prosecution case was that the relevant material was posted on Facebook by the applicant under a number of accounts operated by him under the name Abu Irhaab (translated as "father of terrorism"); in summary the material consisted of amongst other things, "posts" of videos which supported attacks by members of Al-Qaeda on Coalition forces in Iraq and Afghanistan, excerpts from "martyrdom videos" and clips of attacks on civilians including the 9/11 attack on New York.
- The applicant was arraigned on 17 February 2014 at the Central Criminal Court in a Preparatory Hearing before Sweeney J. He pleaded not guilty. The trial date was set for the 24 March 2014. Legal argument was adjourned to the trial judge. Notice of any issues was to be provided by 7 March with skeleton in support by 14 March. In a document dated 17 March, supplemented by a skeleton argument dated 24 March 2014, Mr Rasiah on the applicant's behalf argued that the prosecution of the applicant under section 2 of the Terrorism Act was incompatible with his rights under Articles 9 and 10 of the European Convention on Human Rights (ECHR) and an abuse of the process. Argument on the issue, as refined in argument was heard between 25 and 27 March 2014. The judge gave his ruling on 28 March 2014 (the first ruling). He rejected the application for a stay.
- On the same day, a further skeleton argument from Mr Rasiah was served in which it was submitted that for the offence under section 2 of the 2006 Act to be given effect in a way that is compatible with Article 10 it was necessary to 'read down' the offence as being one of specific intent. On 31 March 2014 the judge gave a further ruling (the second ruling) in which he rejected that submission.
- We should record that following our decision, on 2 June 2014, the applicant pleaded guilty to the counts that he faced.
- At the time of charge the applicant was 22 years old and had no previous convictions. He lived with his family in Cardiff.
- He came to the attention of the police first in October 2011, when his family reported him missing. He was subsequently found to have travelled with another man to Nairobi, Kenya on 8 October 2011, and on 16 October 2011 they were both located close to the Somali border. Both men were deported to the United Kingdom, and on their return to Heathrow both were subject to a full examination pursuant to Schedule 7 of the 2000 Act. His father stated that it was "totally out of character with him going off like this" and observed that he had been suffering from panic attacks in the last year.
- On 1 August 2012, the applicant was stopped at Heathrow; this time he was attempting to travel to Istanbul, Turkey, and he was in the company of another man. He was again subject to an examination under Schedule 7, during which he stated that the purpose of his travel was a city break. The examining officer reported that during the examination "he had an evasive and defensive demeanour and showed [himself] to be a vulnerable individual susceptible to be led along the wrong path in life." As a result of the stop he missed the flight.
- Following this stop, the applicant was referred to "Channel". This is a multi-agency process aimed at protecting vulnerable people from being drawn into terrorism, a key element of the national "Prevent" programme. Details of the reports of his assessment under this process were put before us by Mr Rasiah.
- On 20 September 2012 the applicant was assessed by a mentor, Mufti Nahiem Ajmal. He observed that the applicant "does seem to have psychological, social and emotional difficulties", and assessed him as "of medium to high risk due to the theological beliefs he holds and is being drawn towards in addition to his previous ventures whereby he attempted to reach certain war-torn Muslim countries during a time of war or 'Jihad'." Mr Ajmal reported that the applicant was prepared to engage with him on a one-to-one basis and believed "there is definitely desire to improve however, whether KI [the applicant] is prepared to distance himself from such extreme narratives is perhaps yet too early to say." He proposed a programme involving engagement on a mid-term basis involving weekly sessions over 10 to 12 weeks.
- By 13 April 2013, Mr Ajmal reported that he had worked quite closely with the applicant and mentored him with some frequency; and had developed a stabilized relationship of trust and understanding. Mr Ajmal said that the applicant had "appropriated a narrative" that was "at the least sympathetic to extremist ideology", but believed that they had made "considerably significant progress with KI" since the start of the programme.
- Another mentor, Rashad Ali observed that the applicant had "some very negative influences" including texts and the ideological beliefs of "ALM" (Al Mujhiroun) but stated "the positive thing is that he is prepared to engage, debate and discuss such beliefs and prepared to learn and know that he has knowledge haps." Following a meeting on 21 July 2013 Mr Ali observed "he is showing more emotional and intellectual signs of leaving such thinking and disliking such groups and their activities and superficial ideas." The applicant sent Mr Ali details of a "Jihadi site", which they discussed in their meeting September 2013, and the applicant continued engaging with other mentors until his last such meeting which took place on 8 September 2013.
- In June 2013, the Metropolitan police commenced Operation Bolla, the subject of which was the applicant. The operational objectives were:
"To identify and gather intelligence to an evidential standard, which may lead to a prosecution regarding Khuram Iqbal and his associates who are involved in acts of terrorism, including but not exclusive to:
1. Those committing acts preparatory to terrorism including abroad.
2. The encouragement of terrorism and the incitement or encouragement of others.
3. The glorification of terrorism.
4. Terrorist training offences, including any person who gives or receives training.
5. The funding of any terrorist activity.
6. Those persons who are believed to be involved in the above activities but who are also involved in other criminal activity which may afford opportunities for disruption by arrest and conviction for criminal offences."
- The operation principally involved an undercover operative accessing the internet and using the Google search engine to view videos, photos and other media posted on Facebook or Twitter accounts, attributable to the applicant.
- We have described the prosecution case as to the material posted. Unknown to his mentors, these postings continued and escalated throughout the time that the applicant was engaged in the Channel programme.
Arrest, search and interview
- On 8 October 2013, the applicant was arrested. On arrest he was found to be in possession of a pen drive, 3 mobile telephones, an "Apple" storage device and post in his name at a different address in Cardiff. His home was searched. Correspondence discovered showed he had changed his name by deed poll to "Aadam Qaq Shahin. There was a passport application in this name. 11 editions of 'Inspire' were found on a laptop computer seized from his room. He was interviewed on 8 and 9 October 2013. He admitted being responsible for the relevant accounts. He said he did not understand the harm he could do to other people. He had downloaded 'Inspire' out of interest, but did not share it with others.
The judge's first ruling
- The issue of the compatibility of section 2 of the 2006 Act with Articles 9 and 10 of the ECHR was flagged up in the applicant's defence case statement. By the time of the hearing of the application for a stay it appears the arguments for the applicant had changed to some extent. The judge recorded his understanding that the parties were agreed that he could proceed on the basis that section 2 of the 2006 Act was Convention compliant. The judge said the parties were not in complete agreement as to the issues to be resolved on the application, but he identified the questions the parties wanted him to answer as these:
i) Whether the applicant's rights under Article 10 were engaged by the decision to prosecute?
ii) Whether section 6 of the Human Rights Act 1998 required a detailed scrutiny of the decision to prosecute?
iii) Whether alternative processes were appropriate and whether this had any effect on the decision to prosecute?
- On the first question, the judge considered Article 10 itself, R v Brown  EWCA Crim 2751 and R v Faraz  EWCA Crim 2820. He concluded that section 2 was a necessary and proportionate response to the threat from terrorism, which itself brought the qualified right to freedom of expression into conflict with the right to life of the public. He said he found the reasoning that the qualified right under Article 10 was not engaged by the act of prosecution persuasive. However, he was content to proceed on the basis that Article 10 was engaged, or potentially engaged, in order that the parties could consider the judge's decision on the further questions they had posed.
- On the second question, the judge said the defence submitted that the Court must subject the decision to prosecute to scrutiny to ensure that the CPS acted in a way which was compatible with Convention rights. It was conceded that there was a legal basis for the restriction imposed by section 2 of the 2006 Act and that the law was sufficiently precise to enable an individual to regulate his conduct without breaking the law. The argument was whether the restriction represented by the decision to prosecute was proportionate to the objective.
- The judge was referred to R v L and ors  EWCA Crim 991, R(Purdy) v DPP  AC 345 and the 2013 CPS Guidelines on prosecuting cases involving communications sent by social media, amongst other material. The judge commented that L involved human trafficking and Purdy considered circumstances that may arise when someone seeks to aid another to end their life where they find continued suffering intolerable. He said: "These two situations are far from comparable with someone in the defendant's situation, however young and immature. This case does not raise the same issues of vulnerability and reduced culpability…" As for the Guidelines, they were primarily involved with communications which were rude, offensive or contained an element of hate crime. These matters did not provide realistic comparison to the instant case. Terrorist material was not susceptible to division into comparable categories; once the evidential threshold had been crossed the matter was one of considerable gravity. The judge accepted the Crown's contention that the decision to prosecute was not susceptible to review on the basis set out in L.
- On the third question, the defence submitted that the Crown failed to consider alternatives to prosecution. The fact that the applicant had been offered the chance to engage with the "Prevent" initiative was relied upon. There had been signs of progress. During the period of his participation the police launched an investigation which launched the state on a path to prosecution without any consideration of alternative intervention. Given the applicant's participation with the programme the decision to prosecute was disproportionate. Other options could have been considered. These included: a warning notice, caution, conditional caution or Terrorist Prevention and Investigation Measure ("TPIM"). However, the Crown relied on the fact that during the applicant's participation in the programme he continued to post material and to launch new Facebook usernames. The Crown contended that there was no obligation to consider alternatives to prosecution. In any event, the applicant had been given an opportunity to participate in the "Prevent" programme but had responded by continuing to post offending material. Against this background there could be no basis for suggesting that the prosecution was undertaken in a flawed or inflexible manner. Furthermore, the conclusion would have been the same whatever consideration had been given to alternatives because:
i) Warning notices under s 3 of the 2006 Act were more clearly directed at those who controlled internet sites such as internet service providers.
ii) An informal warning could not reasonably be said to have been an appropriate course to pursue.
iii) Cautioning or conditional cautioning would inevitably have been rejected given the serious and persistent nature of the applicant's conduct. Such conduct was properly categorised as serious criminal offending warranting criminal prosecution.
iv) TPIMs were introduced to cater for a minority of cases where there was a lack of admissible evidence to support a criminal prosecution. Independent Reviewers of Terrorism Legislation had expressed the view that criminal trials were preferable to TPIMs because of the safeguards inherent in the trial process and the fact that this was a lesser interference with a suspect's Article 6 rights.
- The judge accepted the Crown's reasoning on the alternatives to prosecution and the practical realities of considering alternative methods. He said there was nothing to prevent the state deploying more than one approach such as "Prevent" alongside an investigation, provided the state acted in good faith and did not infringe a suspect's rights. The Crown were not seeking to rely on admissions made by the applicant to his mentor during the "Prevent" programme. No bad faith had been alleged. There was nothing to support a contention that the decision to prosecute had been disproportionate. In all the circumstances there were no grounds to consider that the prosecution amounted to an abuse of process and the application failed.
The second ruling
- The judge recorded that that the defence now argued that in order to comply with Article 10, section 2 of the 2006 Act should be read in such a way that the intent required was an intent directly to encourage terrorism. Section 2(1) criminalised the dissemination of materials deemed to be terrorist publications. The instant ruling was primarily concerned with recklessness. The defence submitted that to "[include] omit [sic] recklessness" was offensive to the right to freedom of expression because it was insufficiently foreseeable and was disproportionate. It was further argued that an inchoate offence required specific intent. The Crown contended that the threat of terrorism had been considered by Parliament and section 2 had been subjected to independent scrutiny. The risk posed by radicalisation was serious and it was legitimate and proportionate to punish it.
- Referring to Faraz and Brown the judge noted that the Court of Appeal had stated that the recklessness required was subjective. In Faraz the Court was satisfied that the offence was defined in such a way as not to offend Article 10 rights. However, there was no binding authority. The judge had been referred to an article on "Incitement in International Criminal Law" which addressed inchoate offences and the higher level of intent required. The Crown had referred to the 2012 review by the Independent Reviewer on Terrorism and the fact that no adverse comment had been made. The parties agreed that the prevention of terrorism was a legitimate objective. Given the connection between radicalisation and terrorism it clearly extended to dissemination of terrorist publications.
- The judge was satisfied that no disproportionate interference with freedom of expression was created by leaving open the question of recklessness on the basis of an obvious and serious risk. The jury would be directed along with the guidance given in Faraz.
Grounds of appeal
- Three grounds of appeal were advanced in respect of the first ruling. These were (i) the judge was wrong to find that the act of prosecution did not engage the applicant's Convention rights, in particular his Article 10 rights; (ii) the judge was wrong when he concluded that the decision to prosecute was not open to scrutiny by the court in order to ensure that the applicant's Convention rights were not infringed; (iii) the judge ought to have scrutinised the decision to prosecute and, had he done so, he would have concluded that the prosecution should be stayed.
- On the second ruling, it was argued the judge was wrong to find he was not required to read down the offence under section 2 of the 2006 Act to exclude recklessness as a basis for liability.
- It is convenient to deal with the ground advanced in respect of the second ruling first.
- In Brown, the applicant was convicted of various terrorism offences including offences contrary to section 2 (3)(b) of the 2006 Act (selling and distributing terrorist publications being reckless as to whether his conduct provided assistance in the commission or preparation of acts of terrorism); as well as of offences contrary to section 58 of the 2000 Act. His application for leave to appeal against conviction was refused. It was argued on his behalf that his prosecution was an unlawful interference with his right to freedom of expression under Article 10 ECHR. The court (Lord Judge CJ, Henriques and Irwin JJ) said that none of the applicant's rights were even arguably violated by his prosecution. At paragraph 8 of the judgment of the court Lord Judge said:
"The actions which are prohibited by subsection (2)…plainly involve a guilty mind. There is either an express intention or there is recklessness. On the face of it, it is difficult to see how principles involving freedom of speech are engaged in the context of an individual who intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism. "
- Lord Judge went on to say this at paragraphs 23 and 24:
"23. As to the 2006 Act, it is clear that the question whether or not an individual has distributed or circulated a terrorist publication, or conducted any of the remaining activities prohibited by section 2(2), either intending to encourage, directly or indirectly, or to induce the commission, preparation or instigation of acts of terrorism, or intending to assist such acts, or being reckless as to whether or not they intend [sic] to do so, is subject to determination on the basis of the facts as they existed at the time of the conduct which is impugned, n the context of the publication as a whole and to the circumstances in which the conduct occurred. As we have already observed, it is difficult to see how a criminal act of distribution or circulation of a terrorist publication with the specific intent, or in the frame of mind expressly required as an essential ingredient of this offence to encourage or assist in acts of terrorism, can be saved by reference to the principle of freedom of speech, unless that principle is absolute, which, as we have indicated, it is not.
24. In the context of the present trial it was agreed that the applicant would be free to argue a "freedom of expression" defence. He gave evidence in support of this defence. The case was argued on his behalf before the jury. The jury rejected it, they were entitled to. There is nothing in this ground of appeal."
- In Faraz, the appellant was charged with dissemination of a terrorist publication contrary to section 2(1)(a) and (2) of the 2006 Act with a view to distribution (he sold material which the Crown contended supported the case for Militant Islam in his bookshop and via the internet).
- At a preliminary hearing, Calvert-Smith J had ruled that the "recklessness" required by section 2(1)(c) as an alternative to intention to encourage in section 2(1)(a) was subjective recklessness, i.e. that the defendant "had knowledge of a serious and obvious risk that a publication will have the effect of encouraging, directly or indirectly, the commission of terrorist offences." To that extent he found the offence created was a legitimate and proportionate (and therefore necessary) restriction on the right of the individual to freedom of expression for the purposes of Article 10(2); and this, and other constituent parts of the offences of dissemination of terrorist material in section 2 were Article 10 compliant. That ruling was not appealed.
- However, the judge's direction to the jury reflecting his ruling was attacked in a renewed application for leave to appeal against conviction. Specifically it was submitted for Faraz (as it has been to this court) that the judge should have read down the requirements of section 2, using his power under section 3 of the Human Rights Act 1998 so as to comply with the United Kingdom's obligations under Article 10 ECHR.
- That argument was rejected (we should add that the appeal against conviction was allowed but on a point which is irrelevant to this application). Lord Justice Pitchford, giving the judgment of the court approved the judge's directions to the jury, including those he had given on intent and recklessness: see paragraph 53. These meant the appellant could not be convicted unless the jury were sure the appellant distributed the relevant publication intending at the time of distribution that it would be understood by a significant number of its readers to be encouraging the instigation, preparation or commission of a terrorist offence within a reasonable time-scale, or knowing of a serious and obvious risk that it would be so understood. Pitchford LJ went on to say at paragraphs 54
"…We are satisfied that in the judge's own words, he defined the offence in a way which could not arguably offend the appellant's Art 10 right to freedom of expression."
- After citing paragraphs 23 and 24 from Brown set out above, Pitchford LJ went on to say this at paragraph 57:
"[Counsel] attempted to persuade us of the limited persuasive effect of a judgment of the court upon an application for leave. We recognise that … the Court of Appeal [was] considering in Brown the different wording of section 2(3)(b) which required an assessment whether the material would be understood as being "useful in the commission …of" acts of terrorism. However we regard the underlying proposition as persuasive. Provided, as here, the importance of applying the legal meaning of the section as defined by the trial judge is stressed, there is no risk that the Art 10 right is unlawfully encroached."
- The applicant's contention, baldly stated without reference to what this court said in either Faraz and Brown, is as we have said, that the judge was required to read down the offence under section 2 Terrorism Act 2006 to exclude recklessness as a basis for liability in order to give effect to the applicant's rights under Article 10. In our view there is no proper basis for this proposition, which we regard as unarguable. The starting point is Article 10 ECHR itself. The right to freedom of expression protected by Article 10 is of course not an absolute right, but is a qualified right. Article 10(2) provides in its material parts, that this freedom is subject to such restrictions and penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder or crime and for the protection of the rights of others. All those interests are engaged by acts of terrorism which violate the fundamental rights of others. As the court said in Brown, it is proportionate and legitimate to interfere with the right to freedom expression in order to reduce, diminish or extinguish such acts.
- Parliament has determined that the dissemination of terrorist publications, for example through internet forums, either with the intention that they should directly or indirectly encourage acts of terrorism, or recklessly as to whether they will do so should be penalised (with a maximum sentence of seven years' imprisonment). It has determined further that in the case of recklessness only, it is a defence to show that the publication did not express the defendant's views and was not endorsed by him: see sections 2(9) and (10) of the 2006 Act. We note, as did the judge, that the fact that the offence under section 2 can be committed with specific intent or recklessly was not commented on in the 2012 Report of Independent Reviewer (David Anderson QC) presented to Parliament pursuant to section 36 of the 2006 Act. As to the argument that section 2 should be "read down" so as to exclude recklessness, we find it difficult to see how anything short of a declaration of incompatibility could meet the applicant's complaint given the words of the statute itself (since the logic of Mr Rasiah's argument would require the court, not so much to "read down" the provision but to ignore it); and no such application was made to us. Nonetheless, we think the issue of the compatibility of subjective reckless with Article 10 ECHR has been addressed and answered explicitly and implicitly in Brown and Faraz.
- In the result, we are satisfied that the court is not required to read down section 2 to exclude recklessness (in the sense that the defendant knows of a serious and obvious risk that the (terrorist) material he or she is disseminating would be understood by a significant number of its readers to be encouraging the instigation, preparation or commission of a terrorist offence) in order to make it Article 10 compliant. Noting as we do that the judge in this case said he proposed to direct the jury along those lines in accordance with the guidance given in Faraz, we reject this ground of appeal.
- We turn then to the abuse argument. The applicant's submissions to us were essentially the same as those addressed to the judge. Again, we do not accept there is any arguable merit in the contention that this court should disturb the decision below.
- It is true to say that during the course of his ruling the judge said that an individual's rights under Article 10 ECHR are not engaged at the decision to prosecute stage. We do not think that is right. When the CPS prosecutes someone, it is a decision of a public authority and so the Convention rights of someone affected by the decision are potentially at any rate, engaged. However, the argument on this point seems to us to be a sterile one. The judge went on to consider in detail the substantive issue, that is whether the applicant's rights were violated by the decision to prosecute in this case having regard to Article 10(2) ECHR; and we think the decision he came to on that point was unarguably correct.
- The submissions for the applicant on this (second) aspect of the argument focused principally on the approach taken by this court in L. In our view however, the position the court was considering in L is not analogous to that which arose here. L was concerned with the problems raised by four (unconnected) cases in which three children and one adult who were trafficked by criminals for their own purposes were prosecuted and convicted. Lord Judge CJ giving the judgment of the court said this at paragraph 3:
"We understand that the Director of Public Prosecutions is shortly to reconsider his present guidance on the exercise of the prosecutorial discretion in relation to victims of trafficking. The form to be taken by prosecutorial guidance is ultimately his responsibility. Despite suggestions in the submissions to the contrary, the court cannot become involved either in the investigation of the case or the prosecutorial decision whether it is in the public interest for the prosecution to proceed. Nevertheless we propose to offer guidance to courts (not, we emphasise, to the Director of Public Prosecutions) about how the interests of those who are or may be victims of human trafficking, and in particular child victims, who become enmeshed in criminal activities in consequence, should be approached after criminal proceedings against them have begun. "
- Lord Judge went on to say:
"13. …when there is evidence that victims of trafficking have been involved in criminal activities, the investigation and the decision whether there should be a prosecution, and, if so, any subsequent proceedings require to be approached with the greatest sensitivity. The reasoning is not always spelled out, and perhaps we should do so now. The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals.
14. …What, however, is required in the context of the prosecutorial decision to proceed is a level of protection from prosecution or punishment for trafficked victims who have been compelled to commit criminal offences. These arrangements should follow the "basic principles" of our legal system. In this jurisdiction that protection is provided by the exercise by the "abuse of process" jurisdiction…
16. … The court protects the rights of a victim of trafficking by overseeing the decision of the prosecutor and refusing to countenance any prosecution which fails to acknowledge and address the victim's subservient situation, and the international obligations to which the United Kingdom is a party. The role of the court replicates its role in relation to agents provocateurs. It stands between the prosecution and the victim of trafficking where the crimes are committed as an aspect of the victim's exploitation (see R v Loosely A-G's Ref (No.3 of 2000)  UKHL,  1 Cr.App.R.29).
17. …In the context of an abuse of process argument on behalf of an alleged victim of trafficking, the court will reach its own decision on the basis of the material advanced in support of and against the continuation of the prosecution. Where a court considers issues relevant to age, trafficking and exploitation, the prosecution will be stayed if the court disagrees with the decision to prosecute. The fears that the exercise of the jurisdiction to stay will be inadequate are groundless."
- There was no issue that the relevant offences in L had been committed but the defendants were in an unusual position because they had been trafficked, they were in a subservient position and the potential beneficiary therefore of EU Directive 2011/36/EU (on Preventing and Combating Trafficking in Human Beings and Protecting its Victims). As the passages we have cited above make clear, it is this particular and peculiar position of the defendant which gives rise to the abuse jurisdiction that the court in L invoked by analogy with that arising in cases involving agents provocateurs or prosecutorial misconduct.
- The situation here however is quite different. The applicant denied that he had committed any offence. His defence case statement raised issues as to whether the material was terrorist material, whether he had the necessary intent and whether (in one case) he had a reasonable excuse for possessing the material. The offences with which he was charged are Convention compliant and he was not in any special position. In our view the Crown Court is not required to engage in scrutiny of the prosecution process when the offences charged are known to law, there is no suggestion of prosecutorial misconduct and the defendant has no special characteristics of the kind of which L provided an example. We think the defence argument that the court in this case was required to conduct a form of inquisitorial investigation or judicial review of the decision to prosecute is misconceived.
- In A v R  EWCA Crim 434 there was an appeal against a conviction for perverting the course of justice following a plea of guilty by A. The charge related to the making and retracting of false complaints of rape against her husband. At paragraphs 80 to 85 of the judgment of the court Lord Judge CJ said this:
"80…We have detected the development of what may, if not arrested at an early stage, become a new form of satellite litigation, in which the exercise of the prosecutorial discretion is made subject to a judicial review or abuse of process/stay of proceedings argument in the Crown Court.
81. As to judicial review, there can, we suggest, be very few occasions indeed when an application for permission by or on behalf of a defendant should not be refused at the outset on the basis that an alternative remedy is available in the Crown Court. This is the appropriate tribunal for dealing with these questions on the rare occasions on which they may arise. Precisely the same considerations apply to a case involving summary trial.
82. This principle is well established. In R v Director of Public Prosecutions, ex parte Kebilene  2 AC 326, the House of Lords allowed an appeal from the decision of the Divisional Court presided over by Lord Bingham CJ on the basis that the decision of the Director of Public Prosecutions to consent to a prosecution was correctly addressed in the Crown Court as part of the ordinary criminal process. Lord Steyn, with whom Lord Slynn of Hadley and Lord Cooke of Thorndon agreed, observed:
"… I would rule that absent dishonesty or mala fides or an exceptional circumstance the decision … to consent to the prosecution of the applicants is not amenable to judicial review. Whilst the passing of the Human Rights Act marked a great advance for our criminal justice system it is in my view vitally important that, so far as the courts concerned, its application in our law should take place in an orderly manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal".
Lord Hobhouse was equally trenchant.
"If the substance of what it is sought to review is the answer to some issue between the prosecution and defence arising during a trial on indictment, that issue may not be made the subject of judicial review proceedings."
83. R (E) v DPP  1 Cr App R 6 is for the reasons set out in paragraph  wholly exceptional: if E's case had stood alone judicial review would not have provided an appropriate remedy.
84. There is, however a much more fundamental issue involved than the correct form of process. It is elementary, but it has become necessary to emphasise, that Guidance issued by the Director of Public Prosecutions does not and, as a matter of law cannot, create any immunity or defence. The guidance and any policy documents publicly reflect the considerations which, in an individual case of the kind under consideration, are considered to be relevant to the exercise of the prosecutorial discretion not to bring an individual case to trial notwithstanding admissible evidence which would otherwise justify a prosecution. If, however, this exercise has been conscientiously undertaken, the sole question for the court is whether the offence has been committed. It is not the function of the court to substitute its own view for that of the Crown about whether there should be a prosecution. The well known general observations of Lord Salmon in DPP v Humphrys  AC 1, at 46, apply here as in any other case of suggested abuse of process.
"I respectfully agree … that a judge has not and should not appear to have any responsibility for the institution of prosecutions, nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene."
The court is not powerless. In an appropriate case an order for absolute or conditional discharge will convey its distinct message.
84. Grounds for a stay on the basis of oppression or misconduct are exemplified in ex parte Bennett  1 AC 42, Mullen  QB 520 and Early  1 Cr App R 19. Occasionally, too, the exercise of this jurisdiction may be justified in a case where the prosecution constitutes an infringement of this country's international obligations (see, for example Asfaw  1 AC 1061 (where the international obligation was reflected in statute) and LM and Others  EWCA Crim 2327, (subject to the qualifications in paragraphs .  and ). In summary, when it is sought to advance an argument for a stay by reference to policy or guidance issued by the Director of Public Prosecutions, by way of emphasis it is worth repeating, first, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions. Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute. Third, the decision whether or not to prosecute in most cases requires a judgment to be made about a multiplicity of interlocking circumstances. Therefore even if it can be shown that in one respect or another, part or parts of the relevant guidance or policy have not been adhered to, it does not follow that there was an abuse of process. Indeed, it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance.
85. A further aspect of the trend currently under discussion is exemplified by Mr Quinn's submissions in this appeal. In essence, his argument is that if everyone involved in the case had behaved differently, then the appellant would or might not have been prosecuted at all. In short, in the present case, the overall effect if all those concerned, fulfilling their different responsibilities, had behaved differently would have been the discontinuance of the prosecution. However the unavoidable reality is that the discretion whether to prosecute or not is exercised, and can only be exercised by the CPS on the basis of the information available to it."
- We think those observations are entirely apposite to the abuse application made in this case.
- In our view therefore the judge was right to reject as unrealistic the comparison between the considerations in this case and those involved where there is human trafficking (or which arose in Purdy for that matter) for the reasons he gave. He was also right to conclude that the Prosecutorial Guidelines on prosecuting cases involving communications sent via social media were irrelevant. (Those Guidelines distinguish between cases where the communication in question is (merely) grossly offensive, indecent, obscene or false where prosecution is unlikely to be in the public interest; and cases involving credible threats of violence, which target a specific individual, or involve the breach of a court order, where the general approach is that they should be prosecuted robustly). As the judge said, correctly in our view, terrorist material is not susceptible to division into comparable categories; and once the evidential threshold had been crossed the matter is (and certainly was in this case) one of considerable gravity. This is not a generic justification as Mr Rasiah submitted, but is a realistic approach on the facts.
- We would add that even if the judge was under a duty to scrutinise the prosecution decision, there is nothing in the material with which he was provided which would suggest that this prosecution was in fact disproportionate. At one stage during the course of the argument, Mr Rasiah appeared to suggest that in any case where Article 10 may be engaged by a prosecution, the Crown is under a duty to take all steps short of prosecution; and then to demonstrate to the defendant (giving disclosure as an adjunct to it) that it has done so, failing which no prosecution can be considered Article 10 compliant. When asked why he asserted that this prosecution was a breach of the applicant's Article 10 rights or arguably so, Mr Rasiah initially said it was because the Crown hadn't demonstrated that it wasn't.
- However on closer examination, his argument was more fact specific, namely that on the facts of this case, there were other things short of prosecution, the state could have done, and an adverse inference (that is, of failure to comply with the state's duty to act compatibly with an applicant's Article 10 rights) should follow. We do not accept that analysis. There may have been different options here, though in our view the Crown's reasons why they would have been inappropriate are persuasive. But for the reasons we have already given, the existence of an alternative to prosecution does not mean that the prosecution is open to judicial interference.
- The prosecution in this case (as with all cases falling within Part I of the 2006 Act, see section 19) was instituted with the consent of the Director of Public Prosecutions. The court will disturb decisions of an independent prosecutor and director only in highly exceptional cases: see R (on the application of Corner House Research) v Director of the Serious Fraud Office  1 AC 756 at ; and this was not such a case. Applications to stay are not determined on a theoretical or hypothetical basis; they are determined on the facts. The short point is that there must be an evidential foundation for an application to stay, and Mr Rasiah was simply unable to point to any which would have justified such an exceptional course.
- The material here was (and was conceded to be) terrorist material, which the Crown said the applicant was disseminating with the relevant guilty mind. The judge saw and considered it, as did we (after this case concluded we were supplied with an expert report dated 5 June 2014 prepared by Dr Matthew Wilkinson for this prosecution). The applicant had (admittedly) taken determined steps to continue to post this material online, after Facebook took down his accounts, changing the Facebook names under which it was posted so he could do so.
- Mr Rasiah suggested that there were positive signs of engagement to be discerned from the notes of the applicant's mentors. However, they were not told that he continued to disseminate material of this nature whilst engaging (or purporting to engage) with the Channel programme. In the circumstances, the submission that there was positive engagement, is with respect to Mr Rasiah at the very least, two-edged.
- We should add that we are far from suggesting such a feature, if differently configured, could provide a foundation for an abuse application. Each case must depend on its facts, and on the facts of this case we are satisfied that the abuse application was groundless. The issue before the judge was not an academic one; nor was the case hypothetical. The judge had to consider whether on the material before him, the prosecution of this applicant was an abuse of the process. With respect to Mr Rasiah once the wood is sorted from the trees, it is simply not arguable that it was an abuse.
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