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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Siddique v. Her Majesty's Advocate [2010] ScotHC HCJAC_7 (29 January 2010)
URL: http://www.bailii.org/scot/cases/ScotHC/2010/2010HCJAC7.html
Cite as: 2010 SLT 289, 2010 GWD 5-80, [2010] ScotHC HCJAC_07, [2010] ScotHC HCJAC_7, [2010] HCJAC 7, 2010 SCCR 236, [2010] HCJAC_7, 2010 SCL 380, [2010] HCJAC_07

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Reed

Lord Clarke


[2010] HCJAC 7

Appeal No. XC878/07

OPINION OF THE COURT

delivered by LORD OSBORNE

In

NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE

by

MOHAMMED ATIF SIDDIQUE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant: D Findlay, Q.C.; Ram; Aamer Anwar & Co, Glasgow

For the Crown: D Ogg QC, A.D.; Crown Agent

29 January 2010

The background circumstances


[1] On
17 September 2007, at the High Court at Glasgow, the appellant was convicted on charges (1), (3), (4) and (5) in the indictment that he faced, which were subject to certain deletions and amendments. The terms of the charges on which the appellant was convicted were as follows:

"(1) between 1 March 2003 and 13 April 2006, both dates inclusive, at 4 Myretoungate, Alva, Clackmannanshire; Ibrox Public Library and Glasgow Metropolitan College, both Glasgow, at Glasgow Airport, Renfrewshire and elsewhere to the Prosecutor unknown, you did possess articles in circumstances which give rise to a reasonable suspicion that your possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism, namely, computers, computer files, video files, pictures and sound files and other files; a memory card containing computer files; mobile phones containing files and photographic images; a number of CDs and floppy disks containing computer files and audio files, video files and word documents depicting amongst other things terrorist propaganda, instructions and information on making bombs, the use of various weapon systems, terrorist and guerilla tactics, surveillance techniques, suicide and sacrificial operations and terrorist training camps: CONTRARY to the Terrorism Act 2000, section 57(1) as amended;

....

(3) on various occasions between 1 September 2003 and 30 September 2005 at Glasgow Metropolitan College, Glasgow, you did conduct yourself in a disorderly manner and did show to various students there images of suicide bombers and images of the murder and beheading of persons by terrorists, threaten to become a suicide bomber and carry out acts of terrorism in Glasgow or elsewhere, place said students in a state of fear and alarm and commit a breach of the peace;

(4) between 1 September 2003 and 13 April 2006, both dates inclusive, at 4 Myretoungate, Alva, Clackmannanshire, Ibrox Public Library and Glasgow Metropolitan College, Glasgow and elsewhere to the prosecutor unknown you did provide instruction or training in the making or use of firearms and explosives by means of the Internet in that you did set up, manage and control websites namely www.freewebs.com/al-battar, www.freewebs.com/sout-al-jihad and www.freewebs.com/muaskar-al-battar containing links to documents providing instructions on how to operate various weaponry and to make explosives and further, containing links to other websites containing similar documents: CONTRARY to the Terrorism Act 2000, section 54(1) as amended; and

(5) on 13 April 2006, at 4 Myretoungate, Alva, Clackmannanshire, and elsewhere to the prosecutor unknown you did distribute or circulate terrorist publications by means of websites previously set up by you, namely, www.freewebs.com/al-battar, www.freewebs.com/sout-al-jihad and www.freewebs.com/muaskar-al-battar containing links to terrorist publications with the intention that the effect of said distribution and circulation be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or the provision of assistance in the commission or preparation of such acts or you were reckless as to whether your conduct had an effect abovementioned: CONTRARY to the Terrorism Act 2006, section 2(1)".

Charge (2) in the indictment alleged a contravention of section 58(1)(a) of the Terrorism Act 2000, "the 2000 Act", namely collecting or making a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism. However, the jury had been charged to the effect that charge (2) was an alternative to charge (1) and that, in the event of the jury convicting on charge (1), which they did, they would not require to consider and return a verdict on charge (2).


[2] On 23 October 2007 the appellant was sentenced to 6 years' imprisonment in respect of charge (1), ordered to run from 13 April 2006; 6 months' imprisonment in respect of charge (3); 2 years' imprisonment in respect of charge (4) and one year's imprisonment in respect of charge (5). The period of imprisonment imposed on charge (3) was ordered to run concurrently with that on charge (1); the periods imposed on each of charges (4) and (5) were ordered to run concurrently but to run consecutively to the period imposed on charge (1).

The grounds of appeal


[3] On
17 April 2008, the appellant lodged a Note of Appeal against both conviction and sentence. Leave to appeal has been granted in respect of grounds (2), (3) and (4), as regards conviction, and also in respect of sentence. The grounds of appeal in respect of which leave to appeal has been granted are in the following terms:

"(2) Misdirection

The learned trial judge in his directions to the jury quoad charge (1) failed to adequately direct the jury that they had to be satisfied that the appellant possessed the articles in circumstances that gave rise to a reasonable suspicion that he intended that they be used for the purposes of the commission, preparation or instigation of an act of terrorism. The learned trial judge failed to adequately direct the jury that they had to distinguish and discriminate between 'propaganda or ideological material' and other material in the possession of the appellant when assessing the Crown case. The learned trial judge in directing the jury, failed to adequately make clear that they had to be satisfied that there was a direct connection between the articles possessed by the appellant and an intended act of terrorism. Reference is made to the case of Zafar v R [2008] E.W.C.A. Crim.184.

At page 108 the learned trial judge invited the jury to speculate as to the extent to which a young Scottish Muslim would have an interest in Middle Eastern politics or religion. To invite the jury to speculate in this way amounted, of itself, to a material misdirection.

The Crown led evidence from Evan Kholman. Said witness was designed in the indictment as an 'International Terrorism Consultant' and was responsible for the production of Crown production 4. A copy of Crown production 4 is attached to this Note of Appeal at Appendix 3. Crown production 4 makes reference to and provides opinion evidence of the articles that the Crown relied upon in seeking a conviction. Under reference to the case of R v K [2008] E.W.C.A. Crim.185, it is submitted that the trial judge misdirected the jury in the course of his charge by directing them that in assessing the question of whether the appellant's possession of the articles was for a purpose connected with the commission, preparation or instigation of an act of terrorism they (the jury) were entitled to take into account the opinion evidence of Evan Kholman. The evidence of Evan Kholman was under reference to R v K 'extrinsic evidence' and the trial judge should have directed the jury accordingly.

The failure to do so resulted in inadequate and inappropriate directions being provided to the jury as a result of which the appellant did not receive a fair trial.

(3) Reasonable excuse

Section 58(3) of the Terrorism Act 2000 provides for a statutory defence of reasonable excuse. The trial judge misdirected the jury as to what amounted to a reasonable excuse. Reference is made to the trial judge's charge at pages 62 et seq and page 108. It is submitted that the directions provided to the jury in relation to what in fact could amount to a reasonable excuse were too narrow. Under reference to R v K all that is required to establish a reasonable excuse is that an individual possessed the document or record for a purpose other than to assist in the commission or preparation of an act of terrorism.

(4) Unbalanced charge

The learned trial judge having decided it was appropriate to rehearse the evidence, failed to present a balanced picture. In particular: (i) he rehearsed in detail the evidence relied upon by the Crown in sharp contrast to the evidence relied upon by the defence; as an illustration reference is made to page 117 of the learned trial judge's charge. The learned trial judge (at pages 90 to 100) gave an extensive recital of the Crown documents, rehearsing titles and contents before summarising same. No such rehearsal was presented to the jury in the Crown speech where minimal reference to these documents was made. The learned trial judge's reference to defence case extended to a mere 41/2 pages".

The evidence led at the trial


[4] It may fairly be said that the evidential basis for the appellant's convictions, as described in the report to this court by the trial judge, is somewhat diffuse. A prominent source of evidence for the Crown came from Evan Kholman, a skilled witness possessing expertise entitling him to give opinion evidence on the situation in the
Middle East and beyond. He is an American who described himself as an international terrorism consultant, holding a degree in international politics from the Edmund Walsh School of Foreign Service at Georgetown University and a jurist doctorate from the Law School at Pennsylvania University. He also holds a certificate in Islamic Studies from the Prince Alwaleed bin Tallal Centre for Muslim-Christian Understanding, also at Georgetown University. He had given published evidence to the United States Congress on terrorism and had studied that subject for 10 years. He was the author of a book entitled "Al Qaida Jihad in Europe the Afghan-Bosnian Network". He had become a consultant in 2004, having been a research fellow for 7 years. His research had involved him interviewing known terrorists as well as studying terrorist publications and general articles and books. He was consulted by the United States Justice Department, the Federal Bureau of Investigation and the Metropolitan Police in London. He had testified in several Court cases in England.


[5] Mr Kholman had produced a report (Crown production 4) dealing with what he termed the "decentralisation of Al Qaida's terrorist network". He described Al Qaeda as being two things. First, it was an organisation with some hierarchical structure based in
Afghanistan and Iraq. Osama bin Laden founded it in 1987 and remained its "Amir". Second, it was an ideology adopted by persons who had taken it upon themselves to take independent action in support of Al Qaeda's ideals, even if they had not actually joined the organisation in any formal sense. The aims of Al Qaeda were numerous, but included: (1) the removal of Western influence from Muslim countries; (2) the imposition of Sharia law throughout the Muslim world; (3) the displacement of the United States of America as a global super-power; and (4) the removal of certain persons, perceived as tyrants, ruling countries in the Muslim world.


[6] In about 1986, Al Qaeda and its antecedents had determined that, in order to achieve these goals, a Muslim Army had to be created. It had to have troops, who would have to be properly trained. This was done by establishing a series of camps along the Afghan-Pakistani border designed to train troops in the use of weapons, explosives and guerilla tactics. Some of this training had been recorded on video tape. As a result of American attacks on the camps, it had become increasingly difficult to carry out any such training. Because of this, a new tactic had been developed in the years 2001 to 2003 whereby potential Mujihadeen (troops), especially those from Western countries, would not be trained in camps, but in their home countries. This had been the brain-child of, amongst others, Shaykh Youssef Al-Ayyiri, known as "Al-Battar". It was he too who widened the fight from attacking purely Western targets to carrying out atrocities, even in the heart of the Muslim world, notably the bombing of Western residences in Riyadh in 2003, which had killed several Muslims. The tactic was that everywhere was to become the front line. It was with this globalisation of the conflict that some of the material found on the appellant's laptop computer was concerned. Some of this material was in English, having been published by "At Tibyan", an underground collective in the
United Kingdom, the goal of which was to translate and distribute Al Qaeda material with a view to the recruitment of English speakers, notably British nationals, to the cause of, putting matters loosely, "jihad". The trial judge observes that the evidence supported the idea that the appellant had been seduced by this material and was planning to do, or assist in doing, just what it suggested.


[7] Turning to the appellant's background and the alleged breach of the peace, the trial judge records that at the time of his detention in April 2006, the appellant was aged 20. He had been born in
Scotland of parents of Pakistani Sunni Muslim origin. He lived in the family home at 4 Myretoungate, Alva. His father ran a local shop, including an off-licence. The Deputy Headmaster of Alva Academy, who had taught the appellant computing and social education, described him as a polite and very respectful pupil who was not a high achiever. The appellant had passed 7 Standard Grades; 3 at general level (English, French and Sciences) and 4 at foundation level (including computing). From school, the appellant went to Clackmannan College where he undertook a national qualification in computing. He performed poorly, passing 8 and failing 9 of the modules. Again, he was described as a pleasant, quiet and respectful student. He then enrolled at Glasgow Metropolitan College, formerly Glasgow College of Building and Printing, to do a similar course, this time in computing and information technology, which could have led on to a Higher National Diploma. It was with his actings in his class at that college that the breach of the peace charge, charge (3), was concerned.


[8] The trial judge observes that the evidence from the staff of the college provided an interesting contrast of impressions. According to Alexander Patterson, who taught desktop publishing and graphic design, it was a pleasure to go into this particular class. The students were lively and mixed well with each other. Since at least one of the students maintained that she had complained about the appellant's activities to him, the trial judge observes that it was unfortunate that he was not asked about any complaints made. By contrast, Stephen Aitken, who taught website development, maintained that the class did not get on together. It was one of the worst classes with which he had had to deal in recent times, given the existence of a disruptive element within it. The trial judge states that it was fair to comment that, having regard to the other evidence about what occurred in the class, Mr Patterson substantially played down the existence of any problem activities. In that connection, he purported not to have been aware of any difficulties with what appeared on the appellant's computer screen, other than that he once saw it displaying what he took to be Arabic. Mr Aitken had been concerned in the web design class that the appellant had been using the symbolism of black flags. He had sought, but failed to obtain, an explanation from the appellant as to why he was doing this, but the matter was taken no further.


[9] Brian Glancey, who taught the use of information technology as a business resource, spoke of two occasions upon which he told the appellant to stop accessing the websites he was looking at, notably ones displaying images of Osama bin Laden and musings and exploits of suicide bombers. He had told the appellant that it was inappropriate to access what he called "terrorist websites". He had reported that access to his line manager. Again nothing positive appeared to have been done about that. The impression gained from the block of evidence concerned was that the staff were reluctant to do anything for fear of some accusation of racist conduct. William Stein, who also taught aspects of desktop publishing, had also told the appellant to stop accessing what he considered to be "inappropriate sites" which contained the logo of a circle and a rifle, at about the time of Ken Bigley's murder.


[10] On the student side, the first witness was the class representative, Razia Hussein. Her evidence was the most detailed given about the appellant's activities. This was perhaps because of her position as class representative and her outgoing nature. She deliberately sought out and spoke to the appellant, despite his apparent quiet and reserved personality. She was one of the disruptive elements referred to by Mr Aitken. Although a Shi'ite, and not a woman conforming to the stricter codes of Islamic dress, she had maintained that she got on quite well with the appellant. She was a "class friend". She had said that the appellant accessed the internet at every class where there was internet access available. He had been viewing and showing her websites, such as ones with a dead person pointing to the sky (heaven), armies (people in masks and uniforms) and people getting blown up, as well as those of persons reciting the Koran. The appellant had attempted to explain to her how certain conduct was right and to tell her what Muslims ought to do, notably "commit jihad" which she took to mean "to go and blow oneself up probably". The appellant had said "quite a few times" that he wanted to be a suicide bomber.


[11] Razia Hussein was adamant in cross examination that this was why the appellant was accessing the sites and not because he wanted to find out why suicide bombers did what they did. He had never mentioned to her that he was engaged in any form of research programme. Videos were available on websites of females entering a theatre, presumably the Chechen guerilla siege of the Moscow Theatre, and of a beheading. The appellant had said that he had joined, or was going to join, a training group in
Edinburgh or Stirling and also somewhere in England. He said that he had met Osama bin Laden, who was his idol. He had also said that he was going to blow Glasgow up. Razia Hussein had asked the appellant to tell her when that was going to happen, so that she could run away. A specific incident involved a class trip to a Ministry of Defence building in Glasgow, of which she maintained the appellant had been part. The appellant had told her that he had been watching the building in order to report back to his leaders. Her impression had been that he did not appear to be joking, although she did not always take what he said as seriously intended. At times she had been frightened, as what he was viewing, showing to the class and saying was disturbing. She called the appellant "Al Qaeda" or "suicide bomber". She did not go to the police, but did report his conduct to her course leader, Mr Patterson. Other students, in evidence, spoke to more or less the same type of conduct. The trial judge observes that their evidence, along with that of Razia Hussein, must have been broadly accepted by the jury, since conviction of a breach of the peace in respect of that type of conduct followed. Francesca Dimilta spoke to two occasions when she saw the appellant accessing websites showing troops and Osama bin Laden talking to the camera. The appellant had said, in response to a question from Razia Hussein, that one site was that of "Al Qaeda". He had told Razia Hussein that he believed in what Al Qaeda were doing and approved of the procedures they carried out, such as "the bombings and things". On one occasion when he had been talking to Razia Hussein, he had said that he wanted to be a suicide bomber and had mentioned bombing Glasgow. Miss Dimilta thought his beliefs were genuinely held and she was "a bit alarmed" by them, although she accepted that she did not think that he would actually become a suicide bomber and did not regard what he had said as a threat. She confirmed that Razia Hussein had reported the appellant's activities to the college.


[12] Fozia Begum was Razia Hussein's cousin. She spoke in evidence to being shown websites by the appellant, including one where somebody got his head cut off. She had described this to the appellant as sick, but he had replied that "they" had deserved "it". There was another video of a "guy who died", but was laughing as he had "committed jihad". She spoke to the appellant accessing such videos many times in class. She too said that he had told her that he had seen Osama bin Laden, that he was his idol or god and that Muslims should follow him. She did not believe that he had seen him, as he had been laughing at the time. He had said that he was going to blow up
Glasgow city centre, was going to get training and would do anything for his people. She said that she too had told Mr Patterson about this.


[13] Sue-Yin Law in evidence initially claimed that she could recall seeing only newsreel footage of sand, people and soldiers on the appellant's computer. However, the contents of her police statement reminded her of an occasion when, in December 2003, the appellant had said something about becoming a "sacrifice for God" and that his name would become known "in his country". Finally, Kyle Ramsay said that he had seen the appellant visiting Arabic websites, including one in which a person had been beheaded. The appellant had said that he was going to be famous and his classmates would remember his name. Under reference to his police statements, he said that the appellant had "....said that one day he would make a name for himself ....". He had also mentioned bombing
George Square in Glasgow.


[14] The trial judge states in his report to this court that the evidence showed a consistent pattern of the appellant showing his classmates unpleasant images and what might be described loosely as "terrorist propaganda". He had told them that he was going to become a terrorist, notably a suicide bomber, and that he would bomb part of central
Glasgow. The defence position taken up in cross examination took several tacks. It had been primarily focused on the first and principal witness on this aspect of the case, Razia Hussein. The defence, correctly anticipating the damaging nature of her testimony so far as charge (1) was concerned, launched a fairly sustained attack on her evidence as neither credible nor reliable. It was asserted in cross examination to have been the "figment of an over-ripe imagination". An attempt was made to portray her first as a woman in whom the appellant was unlikely to have confided, given that: (a) she was a Shi'ite and the appellant was a Sunni; and (b) the appellant would not have approved of her failure to comply with the Islamic dress codes. However, her evidence was not that the appellant had been confiding anything to the class, but rather that he was explaining, with some enthusiasm, his current political and religious views and boasting of his future terrorist intentions. Secondly, the defence had sought to poke fun at Razia Hussein by focusing upon her mispronunciation of "Al Qaeda", her lack of in-depth knowledge of the activities of Osama bin Laden and of Middle Eastern politics. Thirdly, the defence put to her that the appellant had not even gone on the Ministry of Defence trip, although no evidence was led to support that contention.


[15] There was considerable use of Razia Hussein's statements to the police in relation to what were strenuous efforts to undermine her testimony. She was accused of lying, for example about reporting the activities of the appellant to Mr Patterson, and, essentially of being a fantasist. The problem with that approach was that her evidence was subsequently supported in large measure by the other students in the class. The importance of Razia Hussein's evidence, observes the trial judge, was ultimately not so much in relation to proof of the breach of the peace, given its essentially minor nature, but in its revelation of the appellant's motives in accessing what were essentially "terrorist" websites and, by extension, downloading and retaining material from them. It was this material that was to form the backbone of the terrorist acts charges.


[16] The defence position during the trial was that the appellant was only accessing the sites out of curiosity, in order to ascertain the thinking behind the suicide bombers and other terrorists. The trial judge observes that there was no evidence that that was the case, other than a passing reference in one of the appellant's interviews that he wanted to know what they were thinking. Given, amongst other things, the level of the appellant's intellectual functioning, the trial judge considered that it was highly unlikely that he was conducting academic research into the subject. Given his extensive downloading, and concealing, of the material it was equally unlikely that his efforts were out of a genuine interest in understanding the mind of the terrorist. On the contrary, as Razia Hussein had said, the trial judge considered that he was accessing the material because he intended to become a terrorist and not because he wanted to understand the innermost thoughts of a terrorist, or a terrorist's perception of the propaganda encouraged rapid route to heaven.


[17] In his report, the trial judge next dealt with the evidence relating to the appellant's intended travel to
Pakistan. On 5 April 2006, the appellant had been intending to travel with his uncle Rafique to Lahore in Pakistan. He had been booked on the 7.45pm flight from Glasgow. At about 3.00pm on that day, the Glasgow Airport police had been tasked, as part of an ongoing operation, with stopping and detaining the appellant and his uncle under and in terms of schedule 7 of the Terrorism Act 2000. That schedule permits the police so to do, and to question or "examine" a person at an airport for the purpose of determining whether that person "is or has been concerned with the commission, preparation or instigation of acts of terrorism". The schedule also allows the police to search such a person or anything which he plans to take onboard an aircraft (schedule 7, paragraph 8(1)(c)).


[18] The appellant had been stopped by the police at
Glasgow Airport shortly before 7.00pm on the date in question. He had been carrying a laptop computer. He was examined intermittently by the police over a period of some 5 hours until about midnight. At one point during the interview, Detective Constable Murray, contrary to certain police guidelines, switched the laptop computer on. He explained that the purpose of this was to make sure that it was a genuine computer, that the material in it was not password protected and in case anything on it required immediate action. It was not password protected and Detective Constable Murray accessed a number of document and image files, all in the appellant's presence. The police discovered nothing incriminating on the laptop, but decided to seize it and send it for further examination. Neither the appellant nor his uncle made the flight to Pakistan, returning to the appellant's home in Alva pending retrieval of their tickets, boarding passes and passports.


[19] The laptop was later examined by a civilian expert, Michael Dickson, a forensic analyst from the police E-Crime Unit. He looked first for e-mails. There were none. That was considered to be curious, given that there were several e-mail accounts in the name of Atif Siddique and others belonging perhaps to members of his family. What was ascertained was that the user of the laptop -and it was not disputed that this was the appellant - had accessed a large number of websites, including tawheed.com/forums, islamicthinkers.com\forum and forumsforfree chat rooms. The trial judge observes that the accessing of these websites was not criminal in itself, but the nature of the sites had a potential significance in confirming that the user of the forums and the manager of the freeweb sites were the same person, not disputed to be the appellant. The accessing of the forums, using an appropriate username and password was capable of providing a clue as to where the appellant obtained at least some of the downloaded material discovered in his possession.


[20] Mr Dickson and his corroborating colleague had come to look for a sub-folder which ought to have been stored under the folder entitled "documents and settings\mohammed atif\my documents". It was named simply "No.1" but could not be found at that location. Rather it had been moved and concealed under the folder "windows/options". This folder is not where a person would normally store "my documents" or other items of personal important interest. This was, no doubt why the police at the airport had not found it. The sub-folder was opened and found to contain a variety of pictures, sound and video files.


[21] The first file considered was a video file (1) WMV, which was copied onto a separate
DVD (L54). This was a publication by "At Tibyan". The video file contained the file: "The Expedition of Shayk Umar Hadid". It purported to have been released by the "Al Qaeda Network in the Land of the Two Rivers". According to Mr Kholman, the original Arabic version was put onto the internet in October 2005 and the English sub-titled edition only in January 2006. The version in the appellant's laptop was the sub-titled version. It was in honour of prisoners and glorified the work of the suicide bombers of the "Iraqi Martyrdom Battalion". It called upon other Muslims to join that Battalion. It was essentially an Al Qaeda propaganda and recruitment video, the English version targeting English speakers in the West.


[22] Five document files were found and printed off (Crown production 112). All of these were in English as follows: (1) "The Islamic Ruling on the Permissibility of Self-Sacrificial Operations" (some 60 pages). This again was an At Tibyan publication. It translated the views of Shayk Yusuf Al Uyayri, a former bodyguard of Osama bin Laden, who was implicated in the bombing of the U.S.S. Cole at
Mogadishu. It was originally made available after the Riyadh bombings in Arabic on the official Al Qaeda website, namely the "Al Neda Centre for Islamic Research". It was intended as a justification of the bombings as the Arab world might otherwise disapprove of such behaviour near some of the most sacred sites of Islam; (2) "Constants on the Path of Jihad". This also had originally been written by Al Ayyiri, lectured upon by an Imam in the United Kingdom and again published by At Tibyan. This explained the so-called true meaning of jihad as a "holy war", that is to say, a violent struggle and not just, as the defence suggested several times during the trial, an inner or moral struggle with the tenets of Islamic faith. This document also urged Muslims to join in that jihad; (3) "Mourning over a Knightess: A Muslimah". This had been put on the worldwide web by Louis Atiyyatullah, an Al Qaeda internet theorist, and concerned the female participants in the siege of the Moscow Theatre. It was intended to shame Muslim male youths into action. It was more propaganda intended as a recruitment tool; (4) "The Book of Jihad". In its original Arabic form, this tome was a work of some antiquity, having been written around the year 800 during an attack of Egypt by Byzantine forces. Its significance lay in its recent translation into English, presumably with the intention of guiding English-speaking Mujihadeen; and (5) "Declaration of War Against the Americans Occupying the Land of the Two Holy Places", a paper written by Osama bin Laden himself.


[23] Within the laptop there was a sub-folder containing an additional 12 document files, which had been printed off (Crown production 119). These had mostly been accessed last on
29 March 2006, although created in June 2005. They were: (1) "Advice Regarding Ubudiyyah", servitude to Allah, again a publication of At Tibyan being a translation of the work of Shayk Abu Mohammed Al Maqdisi. He was the inspiration behind Abu Musa Al Zarqawi, the former head of Al Qaeda in Iraq. Its suggested that any Muslim should be in servitude to Allah and be prepared to lay down his life to Allah, if that is what it takes to protect the goals of Islam; (2) "There once was a False God Called America", again by the theorist Louis Attiyatallah, lauding the Al Qaeda strategy against the United States; (3) "Ramadan in Camp X Ray", relating to the United States military prison camp at Guantanamo Bay, Cuba. (4) "The Tag Du'A (Prayer) is the Weapon of the Believer". This again was an At Tibyan publication which stated that it was incumbent upon Muslims to pray for the violent destruction of the enemies of Islam. It includes the quotation: "May Allah fill their homes and graves with fire"; (5) "The Ruling Regarding Killing Oneself to Protect Information". This document co-written by Dr Ayman Al-Zawahiri, the Deputy Head of Al Qaeda. It concerned what to do if captured. It stressed the legitimacy of suicide in such a situation to avoid revealing information concerning the Mujahadin; (6) "Usamah from Riches to Terror" a biographical news feature about Osama bin Laden; (7) "The Badr al Riyadh Tape" containing compliments on the Riyadh bombings by Louis Atiyyatullah; (8) "The Operation of No.11 Rabi Al Alwaal", a reference again to the 2003 Riyadh bombings, originally in Arabic. This contained a chapter called "Why Riyadh" written by Shayk Yosef Al Ayyira, explaining and defending Al Qaeda's new strategy of bombing even Muslims in Islamic countries; (9) "Are the Taliban from Ahl as Sunnah", justifying the Taliban as legitimate Muslims and rulers of Afghanistan. This too called upon Muslims to support the Taliban and to go to Afghanistan to do so; (10) "The Path to the Land of Battle", once again an At Tibyan publication, pointing out various countries from which a person could access the frontline in Afghanistan. One of these was, of course, Pakistan; (11) "Tawhid of Action", encouraging Muslims to engage in suicide bombings and featuring the bombing of the U.S.S. Cole, and finally (12) "Verily the Victory of Allah is Near", an At Tibyan translation of the now-imprisoned Saudi clerics' suggestion that Islam is winning the battle.


[24] All of these various publications had certain common themes. First, there was that of suicide and martyrdom, as two different concepts. Martyrdom was said to be justified by Islamic jurisprudence; even if it killed civilians. Secondly, they purported to justify war against the
United States of America, the United Kingdom and their allies.


[25] Mr Kholman explained in evidence that the documents were not easy to locate, or at least not all of them, unless a person was aware in advance of any search of the authors and the titles. Many had been produced in the years 2004 to 2005 and had been released in password-protected websites. Not surprisingly, Al Qaeda found it difficult to maintain websites on which their propaganda and other material was readily available for long periods. Individual members or sympathisers had similar difficulties. What tended to occur therefore was that an individual with terrorist material would buy website space with, for example, a stolen credit card. He would then post the material on it. It would remain there for only a few days before the fraud was discovered. By that time however the chat forums would have advertised the existence of the site to those interested and they would have had the time to download the material. It was a legitimate inference from this that a person having a large cache of this type of material, such as the appellant had had, must have been one of a relatively small community of people wishing to collect it, that is to say those having sympathy with its contents. That was so even though, as the defence pointed out, any individual piece of material could have been downloaded by one person and distributed widely by way of CD, e-mail or further websites.


[26] In addition to the material on his laptop, the appellant had a bag of audio CDs some of which contained "Nasheeds"; incantations which include calls to martyrdom and which usually accompanied images of suicide bombers, or other Mujihadeen on video. On his mobile telephone, alongside images of his family, there were those of two persons in camouflage jackets named "Libbi" and "Yahya al Libi". There was one of protesters carrying barriers saying "Behead those who insult Islam" and "Massacre those who insult Islam", presumably taken from news footage of the demonstrations in
London which resulted in the successful prosecution of persons creating and carrying such placards.


[27] The trial judge observes that an important question for the jury was what the appellant was doing, or going to do, with the material described in his laptop whilst going to Pakistan, ostensibly, according to what he said to the police, to stay for a while on his uncle's farm. The material itself contained a clue to that as did his remarks to his classmates. But there were two further important pointers, according to the trial judge: first, the other material discovered in his house and elsewhere; and secondly, records of chats which he had had with someone calling himself "Oceanblue".


[28] The trial judge went on in his report to this court to deal with other material considered relevant to the issues in the trial. About a week after his detention at
Glasgow Airport, the police had raided the appellant's house in Alva. They did so using what the trial judge describes as "the customary panoply of a raid on a suspected terrorist residence; breaking the door down, securing the hands of the occupants with plastic ties and escorting them unceremoniously to a detention centre; in this case to Govan Police Station".


[29] Recovered in the house was the family computer, Crown label production 64. All the files ultimately recovered from this computer and deemed relevant to the case had been deleted. They were recovered from their deleted state. Very little of any significance was found stored on the computer in the former files. However, some sub-folders and files within a folder called "Windows\internet" were recovered. This was a folder in which a person would not normally have been expected to store personal material. The material was copied on to a data CD (Crown label production 56) and printed out (Crown production 108). There were images of Osama bin Laden, a man with his eyes closed and apparently in heaven and again surrounded by others (jazeera-q82.gif), various people in masks holding guns (jihadiman.gif) and animations or films of such people.


[30] Of more significance was the material found in the "slack space" of the home computer. The slack space of a computer was an area of the hard disk where a file had been stored but had been partially over-written by another file. The slack space was that area still containing remnants of the original file. In this space were fragments of a message from Khalid to Yahya Ayash, partly over-written on
6 January 2006, advising him to leave home. The name Yahya Ayash was used elsewhere on the computer in the owner's registry and was, according to Mr Kholman, that of a master bombmaker for Hammas in the late 1980s, known as "the Engineer". It was one of several names, including also atifsiddique, al-battr and abuals an ansaree, used by the appellant to access web forums. There were other fragments of conversations with the "signature" of the user being: "we promise we will not let you live safely....oh Americans wait for us, we have brought slaughter upon you". There was another posting from the user of this computer to someone else who was saying there was nothing special about a particular video clip. This described the user as "we the extremists and Islamic terrorists".


[31] On a windowsill in a bedroom in the appellant's home there was an MP3 recorder. Such a device could be used to store documents as well as music files. It could be used to transfer documents from one computer to another. It did contain documents although they had all been deleted. They were recovered and copied onto a CD (Crown label production 63). The documents included: (1) "Verily the victory of Allah is near", which was also on the appellant's laptop; and (2) the "Path to the
Land of Battle". Under a carpet in the bedroom there was a CD (Crown label production 69) on which the appellant's DNA was found. It was in a badly damaged condition but the material on it was copied to another CD (Crown label production 58). It had two files on it. The first was a video called "Beyond the Mountains", which showed scenes of people training in a mountainous region. It also had images of suicide bombers. The second was "Operation Zabul", which had footage of training and of a helicopter. It showed the "possibly staged" capture and "possibly faked" execution of a person called a "pig", being supposedly an assistant of the President of Afghanistan. There was also a video called "Qahr Ur Saleeb", of an hour and a half duration, starting with the image of a room with the Koran on a table and guns propped up against a wall. It showed helicopters, persons apparently making and placing bombs and an Australian in combat gear saying various things such as "As you kill us you will be killed. As you bomb us you will be bombed". It had men looking at a screen showing the helicopter, dead bodies and the identity card of an American called Danny Dietz, maps of a town with embassies marked and a vehicle being blown up.


[32] A floppy disk (Crown label production 65) was found on a shelf in another bedroom. There were four deleted documents found on the disk and these were printed off (Crown production 109). They were all in Arabic but were translated by a Mrs Hart (Crown production 192). They included a 157 page thesis about jihad which, as a linguist, Mrs Hart said meant "to fight in the cause of Allah", derived from the verb meaning to struggle. This thesis defined "the enemy" as, first, the Jews, then the Christians in the West, then the Christians in the East and ultimately the Shi'ites too; it contained a section on "Preparing for Battle" with subsections on specialised military training, possessing weapons and forming small groups.


[33] On the shelf in this bedroom there was also a bag of 54 floppy disks, (Crown label production 66). One of these was copied and printed out (Crown production 200). The document was in English, but was not titled. It commenced with an historical introduction referring to the fall of the Muslim Caliphates in 1924 and continued:

"The confrontation that Islam calls for with these godless and apostate regimes does not know Socratic debates, Platonic ideals or Aristotelean diplomacy. But it knows the dialogue of bullets, the ideals of assassination, bombing and destruction and the diplomacy of the cannon and machine gun".

It referred to the young coming prepared for jihad, defined as holy war, and appeared to be work by someone wishing to see the restoration of an Islamic caliphate. It then had a number of different lessons set out. There was no first lesson, but the second was entitled "Necessary Qualifications and Characteristics for the Organisation's Member". These included being a Muslim and being prepared to undergo martyrdom. There was no third lesson, but the fourth was on "military bases", from which operations could be launched. The fifth was on means of communication and transportation and the care necessary when using them. The sixth was on training, in fitness, shooting and tactics. The seventh concerned weapons and the eighth related to member safety. The ninth was on what was called a security plan and included the need to be taught how to answer questions at airports such as "Why are you going to Pakistan?". There were more missing lessons, but the twelfth was on espionage and the eighteenth on prison and detention.


[34] Evidence was also led concerning materials sent by the appellant to his cousin Shazie Rehman by e-mail from "atifsiddique786" in March and April 2003 (Crown production 6). This was recovered in the form of printed documents from her house in
Bridge of Allan. Shazie Rehman was a biomedical student. However, she seemed incapable of remembering just how she had come to receive the documents, or to print them off. She said in evidence that she had not asked for the material. The material consisted of a number of documents translated as follows: (1) "Your answers about the Taliban" and "Taliban: Allah's blessing on Afghanistan". This stated, amongst other things, that "military training is an Islamic obligation, mandatory upon every sane Muslim...."; (2) "In the Heart of Green Birds", containing the invocation "Oh Muslims read the stories..." and stating "We are terrorists and terror is an obligation in the Book of Allah. Let the west and east know that we are terrorists and we strike fear". The document contained various stories of "martyrs" in Bosnia; (3) "An Advice to Those who Abstain from Fighting in the Way of Allah"; (4) "Major Signs before the Day of Judgement"; (5) "Stories of the Pious" and (6) "Martyrdom not suicide". This included such phrases as: "....the one who contributes his life to the cause of Allah....his doing is sacrificial, he gives his life away for Islam and Muslims, which is the highest"; and "the one who blows up the enemies of Allah by blowing himself up as well cannot be considered as suicide and he is, Allah willing, a martyr".


[35] The trial judge also refers to items found by another of the appellant's lecturers at college in Glasgow, namely Stella Martin, in her own laptop computer inside a folder of the appellant's work. It was agreed in a joint minute that these were contained in Crown production 186 and were in Arabic. They were translated and found to contain the full text of the wills of four martyrs, addressing threats to American soldiers, etc.


[36] The trial judge in his report then goes on to narrate certain findings of Mr Dickson, the forensic analyst, who, using the term "Oceanblue", found two instances on the appellant laptop in the Windows swap file. The first was an e-mail address "Oceanblue2007@etc" and the second was a message reading: "Oceanblue - Sayif, been looking for you for almost a year, pm (private message) asap" contained in a chat forum. There was also material recovered from computers seized by the West Yorkshire police in the form of three chat logs; two native chat forums from October and November 2005 and a third one undated being a word document cut and pasted from a log. This third one was a conversation between "Oceanblue" and someone calling himself "Abu Hafs al Ansuree" and stored in a file called "Yahyaconv.rtf". "Oceanblue" was a word mentioned on the laptop and Abu Hafs etc and was one of the user-names for forums on the home computer. Put another way, the conversation involved the appellant. It read, in part: "My parents wouldn't let me practice deen as much as I would like (this was when I was staying in
Scotland) ie keeping of the beard...they finally shaved it off forcibly....which led me to run away from the house for the first time....". The trial judge states that this was considered fairly clearly to be the appellant writing. The reply was in the form of advice to dedicate his life in the path of Allah, to fight those who rejected Tawheed, to purchase a laptop and to use fictitious names on the forum. The reply to that was that the user had many names including "Yayya-Ayash" and "Atifsiddique786".


[37] He also referred to just having seen a "video of chop chop", presumably one of the beheading videos earlier referred to. The log dated 25 October between the same participants stated: "I suggest you make a strategic return, a temporary one so that everyone thinks all is fine and well. The reason is we know what you desire to do for the sake of Allah". The ones in early November started with the same names and then one changed to Muhammed Atif and included: "We have to be under cover" "I need to do something...I want something".


[38] The trial judge goes on to describe the websites referred to in charges (4) and (5) in the indictment. These were set up using an internet site called "freeweb". This site allowed users to create relatively basic websites. The home computer user, proved to be the appellant by reference to the web browsing patterns and access to Atif files at the same time as the freeweb site was accessed, had built his own website called "Al Battar" (Crown production 114). Ultimately, it was not disputed that the appellant was the manager of this site. The purpose of the main webpage of the site was stated to be: "To provide you with Islamic downloads and online lectures by different Shayks, it will also have some links to good Islamic pages, forums and websites". It invited the visitors to tell others of its existence. It carried the quotation: "And at what time on earth was Jihad more needed than it is now when the enemies of Islam have surrounded our land like wolves, taking from there what they wish...if not the time for Jihad, O Sons of Adam, when? We need the Jihad, the Jihad does not need us". There were also three other webpages, one of which provided site links to other sites.


[39] There were two other webpages being managed by the same computer user, the appellant, although these could not be accessed directly from the webpages of "Al Battar". The first was "Mu'askar Al Battar", which had links to copies of 18 editions of the magazine of the same name. The magazines were in Arabic. They were printed off and translated (Crown production 189). The degree to which the appellant understood Arabic was perhaps not entirely clear, observed the trial judge. However, in his opinion, so far as the charges before the Court were concerned, that was not a matter of central importance, where he could be taken to understand the general source and tenor of the material which had been put onto the websites.


[40] The magazine title according to Mrs Hart, meant: "The Camp of the Sword that Cuts", the Sword that Cuts (Al-Battar), being the nickname of a martyr. The magazines had a number of regular features on weapons, survival, religion and Jihad. They contained items intended to train the reader and to encourage him to go to a place with a group of friends and for them all to train in terms of the magazine. The training included light weapons and physical fitness. The magazine declared itself to be issued by the Military Committee of Al Qaeda to spread military education among young men. Reference was made to lessons on how to interrogate and resist interrogation, on assassinations, on rumours and propaganda etc.


[41] The second webpage was called "Sawt Al-jihad" (Crown production 117) and contained links to another magazine of the same name, meaning "The Voice of Jihad" and concerning the jihad in the
Arabian Peninsula. Mrs Hart also translated these editions (Crown production 191) which were found to contain material on "Preparing for Jihad", including detailed material on the composition and manufacture of explosives. It contained information on operations in markets - such as where to conceal an explosive package - and operations on buses and at bus stops. In one editorial, there was a call upon the young men of the nation to follow the example of the martyrs who targeted western oil companies and to join the jihad. Richard Cawthorne, a forensic explosive expert, gave evidence that the information on explosives was real and explosives could be created if the materials were obtained and the instructions followed. Hew Griffiths, a forensic firearms expert, spoke of the practical value of the articles on firearms, although much of the information was available elsewhere, for example, in Janes Publications, in other books and on the internet.


[42] The trial judge explains that it was a major contention of the appellant's defence that the magazines were, in any event, available on another website called "ePrism", set up in
Israel by a former Israeli security operative, namely Reuven Pez. The magazines were certainly available on this site, if looked for there. Mr Pez's motives were literally academic and not intended to instruct or train persons in the making of firearms or explosives. A further contention for the defence was that Mr Kholman's own site contained material which might also be used as propaganda. However, it was fairly plain that this was not his intention. In any event, what was on their websites was of marginal relevance to the charges unless it could be said that the material on the appellant's sites was so widely distributed anyway that it could be of no practical use to terrorists. In that regard, the defence adduced a retired Lieutenant Colonel, Nigel Wylde, on the value of this material and its usefulness to terrorists. The jury were directed that the issue on charges (4) and (5) was whether they were satisfied that the material in the links provided on the appellant's site was instruction or training material in the making and use of firearms and explosives. If it was, and the appellant's intention in putting the material on his site was to assist terrorists, then the fact that the material could be gathered by someone else from another website might not be of any great significance. It was clear that the jury were so satisfied of the appellant's intention.

The relevant statutory provisions


[43] It is convenient at this stage to set forth the statutory provisions which pertain to charges (1), (4) and (5) in this case. Section 57 of the Terrorism Act 2000 is in the following terms:

"57 - Possession for terrorist purposes.

(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.

(3) In proceedings for an offence under this section, if it is proved that an article -

(a) was on any premises at the same time as the accused, or

(b) was on premises of which the accused was the occupier or which he habitually used otherwise than as a member of the public, the court may assume that the accused possessed the article, unless he proves that he did not know of its presence on the premises or that he had no control over it.

....."

Section 54 of the 2000 Act is in the following terms:

"54 - Weapons training

(1) A person commits an offence if he provides instruction or training in the making or use of -

(a) firearms, .....

(b) explosives, or

(c) chemical, biological or nuclear weapons.

....

(5) It is a defence for a person charged with an offence under this section in relation to instruction or training to prove that his action or involvement was wholly for a purpose other than assisting, preparing for or participating in terrorism.

...."

Section 1 of the 2000 Act is in the following terms:

1. - Terrorism: Interpretation

(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 an international governmental organisation 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, racial or ideological cause.

(2) Action falls within 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 properties 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 118 of the 2000 Act is in the following terms:

"118 - Defences

(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter.

(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(3) Subsection (4) applies where in accordance with a provision mentioned in subsection (5) the court -

(a) may make an assumption in relation to a person charged with an offence unless a particular matter is proved, or

(b) may accept a fact as sufficient evidence unless a particular matter is proved.

(4) If evidence is adduced which is sufficient evidence to raise an issue with respect to the matter mentioned in subsection (3)(a) or (b) the court shall treat it as proved unless the prosecution disproves it beyond reasonable doubt.

(5) The provisions in respect of which subsections (2) and (4) apply are -

(a) sections ....54, 57, ....of this Act.....".


The submissions for the appellant


[44] Senior counsel for the appellant began by narrating the circumstances of the appellant's conviction as we have set them out. The grounds of appeal to be argued related only to the convictions on charges (1) and (4). He then explained to the court the statutory provisions which related to the matters in question which were sections 57(1), (2), and (3) of the 2000 Act; in that connection he told us that there was no dispute that the appellant had been "in possession" of certain material. He then made a comparison between the provisions of sections 58 and 57 of the 2000 Act. In relation to section 58 there was provided for in subsection (3) a defence of "reasonable excuse". There was no such defence in relation to the offence created by section 57. Senior counsel went on to explain the provisions of section 54(1), (2), (3), and (5) of the Act. Section 118, to which he next referred was concerned with defences and the onus of proof in relation to them. Subsections (1), (2), (3), (4), and (5) were relevant. The expression "terrorism" was defined in section 1(1) to (5). There was a distinction between what might be called active and passive behaviour.


[45] Senior counsel then went on to explain the evidential background of the case which could be seen from the trial judge's report to this Court. He said that "At Tibyan", to which frequent reference had been made, was a publishing house producing Islamic material in the English language. Next he drew attention to the document, Crown production 112, entitled "The Islamic Ruling on the Permissibility of Self-Sacrificial Operations - Suicide, or Martyrdom?" published by At Tibyan. He also drew attention to a paper by Osama bin Laden to be found at page 898 of production 112. While this material was inflammatory, it contained ancient and modern writing, all of which was public. No secrecy surrounded it. Much of it was available on a website operated by an ex-member of Mossad. Next he drew attention to Crown production 119 which began with a quotation from the Koran which enjoined the slaying of the infidels. This was simply part of the historical background to Islamic culture. It was of no practical utility to anyone. The Court should not attribute any undue weight to such material. What was important in the context of the present case was to focus specifically upon the statutory provisions upon which the convictions had been based.


[46] It was necessary to examine in detail the requirements of section 57 of the 2000 Act, invoked in charge (1) in the indictment. The first ingredient for guilt was the possession of an article. No particular controversy surrounded that in the context of the present case. The second ingredient was crucial. It was the requirement that the possession was "in circumstances which give rise to a reasonable suspicion that [it] is for a purpose connected with the commission, preparation or instigation of an act of terrorism". It was submitted that this part of section 57 did not require the identification by date, time and place of some act of terrorism, but it did require the identification of an act of terrorism, as opposed to some general tendency of a terrorist nature. In this particular connection, the inference referred to at page 18 of the trial judge's report said to arise from the possession by a person of a cache of a certain type of material, that they must have had sympathy with its content was not justified. The trial judge had referred to material which might be seen as propaganda; the dissemination of material such as that did not constitute any crime under section 57 of the 2000 Act. It was accepted that the appellant had said that he had had an ambition to become a suicide bomber, but that was merely a declaration of intent. In this connection what the trial judge had said at page 55 of the transcript of his charge to the jury was wrong. In relation to much of the material described in evidence and referred to at pages 19 to 24 of the trial judge's report, it could be said that it amounted only to propaganda, which did not come within the scope of section 57. However, there was other material which might be capable of providing actual assistance in a terrorist context. In relation to the "chat logs" most of the messages exchanged were not specific to the appellant. As regards the websites, the material was relevant to a more practical type of operation; however it was material that was readily available. In essence, there was material in the possession of the appellant which had gone beyond mere propaganda; however that material was widely available; it was not in any sense secret, nor had it been surreptitiously acquired.


[47] Senior counsel recalled that he had submitted that propaganda material did not fall within the scope of section 57 of the 2000 Act. That approach was based upon authority. In that connection he referred to R v K [2008] 3 All ER 526, a decision of the Court of Appeal, Criminal Division. It had to be acknowledged that that case was one brought under section 58 of the 2000 Act; however, there were observations of assistance in connection with section 57. The observations of the Court in paragraphs 12 to 14 were helpful. The material concerned had to be of practical utility. Perhaps of more assistance was R v Zafar and others [2008] 4 AllER 46. That was a case concerned directly with the interpretation of section 57 of the 2000 Act. It had to be interpreted in such a way that it required a direct connection between the object possessed and the act of terrorism. Reliance was placed on paragraphs 6 to 8, 13 to 29 and 31 of the judgment of the court. In relation to paragraph 21, it was accepted that there was some material in this case that went beyond mere propaganda and could fall into category (iv), referred to in that paragraph. Senior counsel invited the court to follow the approach referred to in paragraph 31.


[48] With the benefit of hindsight, it might be thought that charge (1) in the present indictment should not have gone to the jury, upon the basis that there was insufficient relevant evidence to support it. However, it had done and a conviction in terms of it currently stood. Now the issue was whether there had been appropriate directions in relation to that charge. It was submitted that there had not and that, as a consequence, a miscarriage of justice had occurred. It was submitted that the trial judge, in directing the jury, had failed adequately to make clear that they had to be satisfied that there was a direct connection between an article possessed and an intended act of terrorism. The need for that direction had been rendered the greater by the misconceived nature of the submissions made by Advocate depute to the jury, particularly at pages 37 and 38 of the transcript of his speech. Senior counsel then went on to examine in detail the terms of the trial judge's charge to the jury, particularly at pages 49 to 57 of the transcript. He submitted that there was a fundamental misdirection of the jury, particularly at pages 55 to 57 of the transcript. Quite simply the trial judge's directions did not reflect the proper interpretation of section 57, as expanded in R v Zafar. Furthermore, the trial judge failed to direct the jury that they required to be satisfied that the appellant possessed an article that gave rise to a "reasonable suspicion" of the kind set forth in section 67(1); in his directions to the jury, the trial judge had elided that element of the legislation. It was accepted that the Crown did not need to establish the date, time and place of a contemplated act of terrorism, but the nature of the contemplated act had to be shown. The trial judge had failed to distinguish between a propaganda and other ideological material and material of the relevant kind. He ought to have directed the jury relating to the very limited relevance of the former.


[49] Senior counsel next drew our attention to the passage in the transcript of the charge to the jury at pages 107 to 108. This passage was concerned with the issue of "reasonable excuse" in connection with charge (2) in the indictment. While there was no conviction on that charge, the passage concerned invited speculation on the part of the jury and was unnecessary and confusing. In this connection senior counsel relied upon R v Malik [2008] EWCA Crim.1450, a case concerning directions to a jury in relation to a charge brought under section 58 of the 2000 Act. In paragraph 9 of the judgment of the court it was emphasised that propagandist or theological material that simply encouraged the commission of acts of terrorism did not fall within section 58.

The most recent authority relevant to the issues arising was R v G; R v J [2009] 2 All ER 409, a decision of the House of Lords, relating to both sections 57 and 58 of the 2000 Act. The Opinion of the Committee was delivered by Lord Rodger of Earlsferry. Reliance was placed particularly upon paragraphs 39, 42 to 46 and 50 to 60.


[50] Senior counsel next proceeded to consider the part of ground of appeal 2 that related to the evidence of Evan Kholman. The trial judge had given certain directions in relation to that witness at pages 9 to 10 of the transcript of the charge. However, what he said there was not enough. There should have been a direction specifically focused upon the significance of his evidence, having regard to what was said in R v K at paragraph 14 regarding extrinsic evidence. This aspect of the ground of appeal was related to the first part of it, which was focused upon the failure of the trial judge adequately to define the offence involved in charge (1) of the indictment. Reverting to the earlier part of ground of appeal (2), senior counsel examined pages 47 to 53 of the transcript of the charge in detail. The offence under section 57 was not properly defined in those passages. Further, the trial judge had not adequately directed the jury in relation to the defence available to a charge under section 57, having regard to the provisions of section 57(2) and section 118 of the 2000 Act. In particular the law relating to onus enshrined in section 118 was not explained at all by the trial judge. The shortcomings of the trial judge's charge were relevant also to the conviction under charge (4) of the indictment, brought under section 54 of the 2000 Act. Summarising his position, senior counsel sought the quashing of the convictions recorded in terms of charges (1) and (4) of the indictment upon the basis of misdirection. Ground of appeal (4) was not to be argued.

The submissions of the Crown


[51] The Advocate depute began his submissions by recognising that there existed controversy in relation to the operation of section 57 of the 2000 Act. The Lloyd Report was a pre-cursor of the legislation. The context had been the consideration of permanent terrorist legislation in 1996 against a background of expansion in the use of the internet, although the Report itself made no reference to that use. It was significant to note that in section 121 of the 2000 Act the word "article" was given a very wide definition as "includes substance and any other thing".


[52] The question which arose in connection with section 57 was what was the legislative intention. It would be wrong in that connection to start with a search for some particular act of terrorism, which would be to interpret the offence created out of existence. Looking at R v G; and R v J, at page 10 of the Report, the charge involved in J's case was set forth; it referred only to "an act of terrorism". There was no specification. The words used in section 57 were "...instigation of an act of terrorism". It was submitted that the words "of an act" were otiose having regard to the definition of "terrorism" found in section 1 of the Act. The words were simply used to enable the fact-finder to draw an inference from circumstances. All this was in accordance with what the House of Lords had said in R v G; R v J. As regards R v Zafar, it was not submitted that the case was wrongly decided in any respect. It was important to notice that no attack was mounted against the conviction under charge (5) of the indictment; in certain respects, the criteria involved in relation to that charge were the same as in relation to charge (1).


[53] R v Director of Public Prosecutions, ex parte Kebeline and others [1999] 4 All ER 801 was instructive. The Prevention of Terrorism (Temporary Provisions) Act 1989 was under consideration, section 17A of which used the expression "acts of terrorism". At page 543, Lord Hope of Craighead equiparated the expression "acts of terrorism" simply with the word "terrorism".


[54] Reverting to R v G; R v J, it was evident that J's case was similar to that of the appellant. In paragraph 22 there was an indication of the material in which J had been in possession. Paragraph 43 was important, since it focused attention upon particular material which would be of use to terrorists, as opposed to ordinary members of the population, such material as would provide practical assistance to a person committing or preparing to commit an act of terrorism. It was evident from paragraph 44 that what was said there relating to "extrinsic evidence" was said in the context of a case brought under section 58 of the 2000 Act. What was said in paragraph 49 reinforced the submission that no specific act of terrorism required to be contemplated. Turning to that part of the case that dealt with section 57 of the 2000 Act, paragraph 51 and following were important. It was part of the requirements of section 57 that there had to arise a "reasonable suspicion". That was dealt with in paragraph 55. Reverting to the terms of section 57(1) of the 2000 Act, the word "purpose" appeared; it was submitted that it was not necessary for the Crown to prove what the "purpose" was, in any particular case. In order to rebut the defence in this case the Crown had led evidence relating to expressions of intention by the appellant that he wanted to blow himself up. That was in response to the appellant's defence that he was in possession of articles simply to satisfy his own curiosity.

Reverting to the case of R v G; R v J, the Advocate depute contended that what was said in paragraph 68 was important regarding the proper approach to a defence under section 57(2) and section 118 of the 2000 Act.


[55] The Advocate depute moved on to consider R v Zafar. He relied particularly on paragraphs 22 to 25. It was not necessary for the Crown to show "an act of terrorism"; if they were able to do so, that might assist in giving rise to an inference of "reasonable suspicion". But, even if they had to do so, they could, since it was evident from some of the material relevant to the appellant that he contemplated a suicide bombing in
George Square, Glasgow. While propaganda might be seen as outwith the scope of section 57, the possession of propaganda had to be regarded as part of the "articles" which ought to be looked at as a whole. It was necessary to look at charge (1) of the indictment as a whole; it was not appropriate to focus on each and every particular element in it. The combination of articles had a significance of its own.


[56] The Advocate depute had compiled a "route map" for the application of section 57(1) of the 2000 Act. This bore on the matter of appropriate directions. There were four stages involved. First, it was necessary to look at the articles, their description, and their significance and hear any expert evidence that might be relevant to them. Secondly, it was necessary to look at the circumstances of possession, the nature of the combination of articles, such issues as concealment, and any statements of the purpose of possession that were available. Thirdly, the question had to be asked whether those circumstances gave rise to a reasonable suspicion that the possession of the articles was intended to be used for the purpose of any act of terrorism. If the circumstances did yield such a reasonable suspicion, beyond reasonable doubt, then the person accused would be guilty. Fourthly, in such an event, the provisions of section 57(2) and 118 might operate to provide a defence. Taking an approach such as that, the Advocate depute conceded that for an accused person to say, as the appellant had done here, that he possessed articles on account of his "curiosity" would be to state a relevant defence. Nevertheless, there was in the evidence an ample basis for conviction, despite that contention. The Advocate depute at the trial had followed the approach just outlined in his speech to the jury. At page 37 to 38 of the transcript of his speech, he had submitted that the appellant's possession of the material to which he referred had been for a terrorist purpose. Although he stated that it was not necessary for him to satisfy the jury as to the particular terrorist purpose, that was evident from the evidence and was the appellant's purpose to become a suicide bomber.


[57] The Advocate depute then turned to examine the trial judge's directions to the jury. Two questions arose; first, were the essential components, or any of them missing? Second, if so, was there, in consequence, a miscarriage of justice? It had to be borne in mind that a trial judge was not under necessity of adopting a legalistic approach; indeed, to do so could well be counter-productive. It might be said that there was indeed misdirection, taking the form of the omission of reference to "reasonable suspicion"; but, if that were the case, there was no miscarriage of justice. The expert evidence had been dealt with in a faultless manner. No challenge had been made to Mr Kholman as regards his experience and qualifications, which were ample. At no time had the trial judge suggested that the expert evidence assisted the jury to conclude that the accused had an intention to commit an act of terrorism. The expert had given skilled explanations as to the significance of evidential features of the case, which was legitimate. Another expert had been led who spoke regarding bomb-making and the instructions which had been found. What had been described as "extrinsic evidence" in R v K, in paragraph 14 was applicable to a case brought under section 58 of the 2000 Act, but not in relation to a case under section 57, where it was permissible. During the course of the trial no expert witness had been asked to answer a question which was one apt to be answered by the jury itself. Such a course would have been objectionable. On the whole matter the appellant's criticisms of the trial judge's directions in relation to expert witnesses had not been made out.


[58] Turning to the directions on the available defence, it might be thought that there was a difficulty. At pages 47 to 48 of the transcript of the charge, where he dealt first with the matter of the defence, it had to be accepted that he had not referred specifically to section 57(2) of the 2000 Act. It had to be accepted that at page 49 of the transcript of the charge what the trial judge had said was in error because there was no reference in that passage to "reasonable suspicion". However, at page 52 he had set a higher test than that which the legislation itself set, since again, he had not mentioned reasonable suspicion. So the misdirection was unduly favourable to the appellant.


[59] As regards the matter of the statutory defence, the Advocate depute accepted that there was no specific passage in the charge setting out the statutory defence enacted in section 57(2) or section 118 of the 2000 Act. However, it was submitted that the jury could have been in no real doubt about the circumstances where a defence would be available. In this connection he referred to passages at page 62, 75 and 107 of the transcript of the charge. The Advocate depute agreed that the approach that had been taken was not in accord with that desiderated by Lord Rodger of Earlsferry in R v G; R v J, in paragraphs 54, 55 and 62. Reference was made to the passage at page 111 in the transcript of the charge where, in laymen's terms, however, the trial judge had indicated the nature of the defence.


[60] In essence, the defences actually stated on charges (1) and (2) were the same; that there had been merely curiosity on the part of the appellant which accounted for his possession of articles. What was said at page 111 was very generous to the appellant; it could properly be seen as a direction in relation to a defence under section 57(2).


[61] The Advocate depute did concede generally that, in dealing with what he called this "statutory minefield" a judge should stick to the statutory scheme in the way that Lord Rodger of Earlsferry had desiderated in R v G; R v J. However, the departures from that course in the present case did not amount to a miscarriage of justice because either they raised the "bar" that the Crown had to cross for a conviction to a level higher than it should be, or they were generous in characterising the defence of curiosity in the way that they did.


[62] There were certain simple features in the case; in particular, the jury would not have been taxed in concluding that the materials found in the possession of the appellant related to terrorism; a suicide bombing was plainly an act of terrorism. More generally it should be borne in mind that there was an undisputed conviction on charge (5) in the indictment. It was a short step from that to a conviction on charge (1).


[63] Summarising his position, the Advocate depute drew attention to Blackstone's Guide to the Anti-Terror Legislation, Oxford University Press 2002, paragraph 6.5 and Black's Legal Dictionary in relation to the word "act". Summarising his position the Advocate depute said that while the trial judge had set for the Crown a higher than necessary task in his charge, none of the deficiencies in that charge had acted to the detriment of the appellant. The charge adequately, if not exactly, reflected the offences alleged and the defences to them. There had been overwhelming evidence in the articles and circumstances showing that what was required by the statute had been proved. No appeal had been focused on the conviction on the charge brought under section 54 of the 2000 Act. The directions relating to that were proper and appropriate.

Reply by senior counsel for the appellant


[64] First of all, the conviction on charge (5) could not be relied upon in relation to the conviction on any of the other statutory charges; that a charge had been brought under different legislation, namely section 2(1) of the Terrorism Act 2006, which allowed for the possibility that conviction might be on the basis of recklessness; that did not feature in relation to any of the other charges.


[65] So far as sections 57 and 58 of the 2000 Act were concerned, they were Draconian in effect. They were enacted to forestall the occurrence of damaging events that had not happened. Specific provisions had been built into them to provide for a statutory defence, which were important. It was therefore wholly appropriate that these statutory provisions should be carefully explained to a jury. In the present case, the appellant's defence had not been put to the jury as the statute contemplated by the trial judge. That was wrong and had resulted in an unfair trial and a miscarriage of justice. The defences available under sections 57 and 58 were separate and distinct; they had been conflated. It was impossible to know what had been the impact of that approach. It was necessary to have sympathy for the trial judge, since he did not have the benefit of authorities which were now available, but nevertheless he did not proceed appropriately.

The Decision


[66] We consider first that part of ground of appeal (2) that relates to the treatment by the trial judge of the evidence of Evan Kholman. What the trial judge said about the expert evidence from this witness is to be found between pages 9 and 12 of the transcript of his charge, as a sequel to his directions relating to the evidence of witnesses generally. There he said:

"....expert testimony can pose particular problems when dealing with technical matters in fields which you may not be entirely familiar with. As I mentioned during the trial, it is not the function of a skilled witness to come into court and to tell a jury things that a jury should already know. Their function is not to tell you about things that are within your own knowledge. The function of the expert is to deal with matters which a jury is not expected to be aware of, perhaps such as the detailed personalities involved in Middle Eastern politics where that is relevant. We may all be familiar with some of the people who have been mentioned in this case, but not others, but it may be the function of an expert to explain who everybody is and what part they play, etc, etc.

Again, with an expert witness, whether he is talking about armaments, whether he is talking about Middle Eastern politics it is for you to assess that expert evidence and to decide which expert to accept and which expert to reject, again applying all the things that I have mentioned, the body language, the inherent probability, the comparing and contrasting with known fact. You may not wish to judge an expert simply by the enthusiasm for his subject, but you should take into account matters of importance. What are the qualifications of the witness, for example? First of all, is the witness duly qualified in the field about which he speaks? Secondly, is he experienced in the particular area about which he speaks? In that sense what practical knowledge does he have, where is he getting his information from? Thirdly, is there a reason to suppose that the witness is, for some reason, biased? Mr Findlay mentioned, and I think criticised Mr Kholman for taking money for what he does. Well, Ladies and Gentlemen that is not an unusual thing for an expert to be doing. We don't often get skilled witnesses coming into the court for nothing, for reasons which I am sure you will readily appreciate, but you have got to consider are the criticisms which were made of his testimony well merited. Is the fact that he has certain material on his website something which deserves criticism and, if so, what effect does that criticism have on his testimony? Does that affect his testimony generally? Does it affect his testimony specifically on the matters which he told you about, namely who's who in Middle Eastern politics, why are certain things being put out on the web etc? So, all of these points may be significant in determining whether the expert is someone you accept as a person who actually knows what he is talking about and is trying to tell you about it honestly and reliably.

It is for you the jury then to decide what evidence you accept and what evidence you reject, and, of course, also what weight or importance you attach to a particular piece of testimony and what inferences, what conclusions of fact you draw from the testimony that you have heard".


[67] So far as these directions are concerned, in our view, they are entirely unexceptionable, being of a kind that would be appropriate where expert testimony had been led. However, the appellant's criticism of the trial judge's directions in relation to Mr Kholman's evidence, as we understand it, has a more particular focus. The criticism appears to be that the trial judge misdirected the jury by directing them that, in assessing the question of whether the appellant's possession of articles was for a purpose connected with the commission, preparation or instigation of an act of terrorism, they were entitled to take into account the opinion evidence of Mr Kholman. It is also said that that evidence was "extrinsic evidence", as understood in R v K and that the trial judge should have directed the jury accordingly.


[68] It is true that, at a number of points in the trial judge's charge, at which he was discussing the evidence led to support the Crown case, he referred to the evidence of Mr Kholman. Such references are to be found at pages 80, 82, 83, 84, 86, 90, 104 and 129 of the transcript of his charge. However, having considered those references, we can discern nothing that is objectionable in them. By and large, the references were to passages in Mr Kholman's evidence where the significance of some individual or practice in the Islamic world had been explained by him, performing his function as an expert witness in that respect. We are unable to conclude that any of these references to his evidence amount to misdirection.


[69] In R v K, the Court of Appeal, Criminal Division had been concerned with a conviction under section 58 of the 2000 Act. An issue arose in relation to the legitimacy of the use of extrinsic evidence to show that information was intended to be used for the commission of an act of terrorism. What the Court held was that extrinsic evidence might be adduced to explain the nature of information, but that it was not legitimate under section 58, to seek to demonstrate, by reference to extrinsic evidence that a document which was innocuous on its face, was intended to be used for the purpose of committing or preparing a terrorist act. That is the essence of what was said in the judgment of the Court delivered by Lord Phillips of Worth Matravers C.J., in paragraph [14].


[70] We would make two points in relation to this part of the appellant's ground of appeal. First, the dicta founded upon taken from paragraph [14] of the judgment concerned were pronounced in the context of a prosecution brought under section 58 of the 2000 Act. In the present appeal we are not concerned with such a matter. While charge (2) of the indictment was brought under that enactment, there was no conviction on that charge. Accordingly, it is difficult to see what relevance the dicta concerned can have in the context of a conviction under section 57 of the Act, the terms of which are quite different from those of section 58. Second, the references in the directions to the jury given by the trial judge, in so far as they referred to the evidence of Mr Kholman, make it clear that no suggestion was being made that Mr Kholman's evidence could be used directly by the jury for the purpose of reaching an affirmative conclusion as to whether an offence had been committed under section 57(1) of the 2000 Act. In these circumstances, we cannot conclude that the trial judge was under any duty to give any specific directions relating to the evidence of Mr Kholman, as desiderated in ground of appeal (2).


[71] We turn now to deal with the main criticism of the directions given to the jury in relation to charge (1) focused in this ground of appeal. The starting point in a consideration of this matter must be the recognition that, in any solemn criminal trial, the jury should be given directions on the definition and meaning of any crime charged in the indictment, and, in particular, on the elements necessary to be proved by the prosecution. Bearing that in mind, it is necessary, in the first place, to consider the nature of the offence created by section 57(1) of the 2000 Act and the ingredients of the offence which require to be proved. The most authoritative source of guidance on these matters is to be found in the decision of the House of Lords in R v G; R v J, in which the nature of the offences created by both sections 57 and 58 of the 2000 Act was considered. Unfortunately, that guidance was not available to the trial judge in this case when he charged the jury. Nevertheless, we must have regard to it.


[72] The report of the appellate committee was delivered by Lord Rodger of Earlsferry. He dealt with the section 57 offence in paragraphs [51] to [56] and the overlap between sections 57(1) and 58(1) in paragraphs [57] to [59] of the report. Finally, he dealt with the operation of the defences under sections 58(3) and 57(2) in paragraphs [60] to [70]. In paragraph [52] the scope of section 57 is considered. The possession may extend to any "article", which is widely defined in section 121. In paragraph [53], the point that is made is that the Crown must establish under section 57(1) that the accused possessed the article in question. No issue arises in relation to that matter in the present case. However, in paragraph [54], Lord Rodger of Earlsferry continued in this way:

"Next, and crucially, the Crown must prove beyond reasonable doubt that the circumstances in which the defendant possessed the article give rise to a reasonable suspicion that his possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism. So, in contrast to section 58(1), the circumstances of the defendant's possession form one of the crucial elements of the section 57(1) offence".

In paragraph [55] Lord Rodger went on to say:

"It is unusual, but not unprecedented, for Parliament to create an offence of this kind, based on a reasonable suspicion as to the purpose behind a defendant's possession. Section 57(1) is presumably modelled on section 4(1) of the Explosive Substances Act 1883...[his Lordship then went on to quote the provisions of that enactment]....Similarly, under section 57(1) of the 2000 Act, the Crown does not need to prove what the accused's purpose connected with the commission, preparation or instigation of an act of terrorism actually was - something which might well be impossible to prove. It is enough if the Crown satisfies the Court or jury, beyond reasonable doubt, that the circumstances give rise to a reasonable suspicion that the defendant's possession was for the relevant purpose. The defendant is then given a defence under subsection (2)".


[73] Lord Rodger went on in paragraph [58] to explain further the nature of the offence created by section 57(1). He observes:

"Thirdly, precisely because section 57(1) covers any 'article', the section only bites on the defendant's possession of the article in certain circumstances, viz, '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'. It is not the possession of the article as such which is criminal, but its possession in those particular circumstances...".


[74] In paragraph [62] Lord Rodger explained the nature of the defence available under section 57(2) of the 2000 Act saying:

"As already indicated in paragraph [55] the need for the defence in section 57(2) only arises when the Crown has proved all the elements of the offence in section 57(1). Under subsection (2) it is a defence for the defendant 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. So, the jury must acquit the defendant, if they find this defence proved, even though they are simultaneously satisfied beyond a reasonable doubt that the circumstances of his possession give rise a reasonable suspicion that it was for a purpose connected with the commission, preparation or instigation of an act of terrorism. In other words, the defendant has a defence when, despite any reasonable suspicion to the contrary, his possession of the article in question was not in fact for a purpose connected with the commission etc. of an act of terrorism".

A further complication in the operation of this legislation arises from the terms of section 118 of the 2000 Act, which deals essentially with the onus of proof in relation to defences such as that available under section 57(2). This matter was dealt with in paragraph [63] by Lord Rodger. There he said:

"Suppose that the Crown leads evidence to prove all the elements in section 57(1) beyond reasonable doubt. Then, if the defendant adduces sufficient evidence to entitle the Court or jury to find that the defendant did not have the article for a purpose connected with the commission etc of an act of terrorism, they are to assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that the defence is not satisfied. The section gives statutory expression to the familiar concept of an evidential burden on a defendant to raise a defence, which the Crown must then disprove beyond reasonable doubt".


[75] Before concluding our consideration of the nature of the offence created by section 57(1) of the 2000 Act and the statutory provisions relating to a defence to it, it is also necessary to notice what was said in R v Zafar and others. It is not necessary to consider the details of the circumstances of that case, but it is important to bear in mind the interpretation of section 57 that the Court of Appeal, Criminal Division reached in that case. The Court held that in order to have the required certainty of meaning, section 57 of the 2000 Act had to be interpreted in a way that required a direct connection between the object possessed and the act of terrorism. The matter was put in this way by Lord Phillips of Worth Matravers C.J., in paragraph [29] of the judgment of the Court:

"We have concluded that if section 57 is to have the certainty of meaning that the law requires, it must be interpreted in a way that requires a direct connection between the object possessed and the act of terrorism. The section should be interpreted as if it reads:

'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'".


[76] A further point of importance emerges from the case just discussed, which is expressed in paragraph [31] of the judgment of the Court:

"Not without hesitation we have concluded that possessing a document for the purpose of inciting a person to commit an act of terrorism falls within the ambit of section 57. We have considered the definition of 'instigate' in a number of dictionaries and, in each case, have found the word 'incite' as a synonym. Black's Law Dictionary (7th ed 1999), page 800 defines 'instigate' as 'to goad or incite (someone) to take some action or course'. We have concluded that section 57 must be construed having regard to the normal meaning of 'instigate'....".


[77] Having completed this examination of the character and requirements of section 57 of the 2000 Act, we find ourselves immediately able to reject the argument advanced by the Advocate depute to the effect that the words "act of terrorism" should simply be read as a synonym for the word "terrorism". We see no justification for that approach in the authorities to which we have just referred.


[78] We turn now to consider the directions given by the trial judge in this case, with a view to seeing whether the jury were given adequate directions on the definition and meaning of the crime charged in charge (1) in the indictment, namely that created by section 57(1) of the 2000 Act. The trial judge begins his consideration of the crimes charged at page 45 of the transcript. After dealing with the statutory nature of the crimes brought under the 2000 Act, at page 47, he deals with charge (1). While in the opening passage on that page, the trial judge, in effect, follows the statutory wording of section 57(1), particularly referring to possession of an article in circumstances which give rise to a reasonable suspicion that his possession was for a purpose connected with the commission, preparation or instigation of an act of terrorism, that is the only part of the charge in which he follows the statutory language. Almost immediately thereafter, on page 47, he departs from it and refers to the possession of articles for the relevant purpose, eliding any reference to "reasonable suspicion". That language is repeated at page 49 of the transcript where the trial judge said:

"...the second thing that the Crown have to prove, and this is the important issue in this case, the Crown have to prove that his possession of these articles was for a purpose connected with the commission, preparation or instigation of an act of terrorism".

After dealing with the nature of an act of terrorism, with which we do not have to be concerned here, at page 52, the trial judge reverts to what he states were the essentials for proof of the crime, again making no reference to the statutory language itself and, in particular, the words "reasonable suspicion". At page 53 the trial judge says:

"Again it's a progression on that line of thinking, ladies and gentlemen, that the articles themselves must for a conviction have some role to play in the commission, preparation or instigation of the act of terrorism. They must have some connection with the commission, preparation or instigation of the act of terrorism. They must be capable, therefore, of contributing in some way to the commission, preparation or instigation of that act".


[79] Thereafter, the trial judge enters upon a consideration of the nature of the other charges in the case and goes on to give a summary of the evidence relied upon. At page 100, by way of a summary, he reverts apparently to the requirements of section 57(1), but again does not follow the statutory definition of the offence, making no reference to circumstances giving rise to a "reasonable suspicion". It is to be noted at page 100, for the first time, the trial judge refers to the importance of the consideration of what was the intention of the accused in having the material concerned.


[80] At page 107, the trial judge makes reference to the position of the defence, putting the matter in this way:

"....the defence, of course, ask you not to draw any inference that the accused had the material for a purpose connected with terrorism, and [counsel] has put it to you that this material could all simply have been the product of genuine research of someone with a reasonable inquiring, presumably, mind about the fate of his fellow Muslims in and around the Middle East".

It is to be noted that the trial judge does not specifically follow the statutory language in section 57(2), or explain that language to the jury. Nor does he make any reference to the effect of section 118 of the 2000 Act, in so far as it bears upon the onus resting upon any party relating to the defence.


[81] In the light of our examination of the relevant parts of the charge, while it is evident that, at the very outset of his consideration of the offence alleged in charge (1) of the indictment, the trial judge followed the statutory language of section 57(1), almost immediately he then departed from the use of that language and, throughout the rest of his charge, he treated the offence as if section 57(1) contained a no reference to "circumstances which give rise to a reasonable suspicion". We consider that that amounted to a material misdirection. In the course of the discussion before us, the Advocate depute accepted that there had indeed been a misdirection of the jury in relation to that aspect of the matter, but contended that the effect of this direction was to set the task of the Crown in proof of the offence at a higher level than the law in fact required. Since the jury had concluded that the Crown had proved the offence to that higher level, there was in fact no miscarriage of justice consequent upon the misdirection. While that argument might be thought to be superficially attractive, it is one which we reject. It appears to us that there is a crucial relationship between the statutory language used in section 57(1) and the defence created by section 57(2). That latter subsection, of course, provides that it is a defence for a person charged with an offence under section 57(1) to prove that his possession of the article was not in fact for a purpose connected with the commission, preparation or instigation of an act of terrorism. However, if the jury had previously been instructed that the requirement of section 57(1) was that the offence consisted in possession of an article for a purpose connected with the commission, preparation or instigation of an act of terrorism, it is logically impossible to see how the defence could ever be established. In other words, the provisions of section 57(2) can properly operate only upon the basis of the strict application of the statutory language used in section 57(1) as the definition of the offence and, in particular, the use there of the words "in circumstances which give rise to a reasonable suspicion that....".


[82] In the light of these considerations we have reached the conclusion that, upon the basis of the directions given to the jury, there was a serious likelihood of confusion in their minds regarding the nature of the offence created by section 57(1), and the operation of the statutory defence available under section 57(2) of the 2000 Act. In our view, therefore, the giving to the jury of the directions to be found in the charge relating to these matters amounted not only to a misdirection, but also to a miscarriage of justice. In that connection, we have been particularly influenced by the fact that, in this case, there was a defence of what has been referred to as "curiosity", as an innocent explanation for the appellant's possession of the articles in question. That being the background, it was of particular importance that accurate directions should be given on the matters concerned. Likewise, while at page 100 of the transcript of the charge there is a reference to the intention of the appellant in relation to the material concerned, we do not consider that that, of itself, is sufficient to amount to a direction consistent with the decision in R v Zafar, to the effect that section 57 requires to be interpreted in a way that requires a direct connection between the object possessed and the act of terrorism. In our view there should have been clear directions to that effect, which there were not. Again, we consider that that amounts to misdirection, which, in the circumstances of this case must be seen as a miscarriage of justice.


[83] Having reached the conclusion that we have, we find it unnecessary to reach any conclusion in relation to the submissions made in relation to what might be described as propaganda material, although, having regard to what was said in R v Zafar and others in paragraph [31], it is difficult to avoid the conclusion that, at least in certain circumstances, propaganda material might be considered relevant to a purpose connected with the instigation of an act of terrorism.


[84] Likewise, we find that it is unnecessary for us to comment on the passage at page 108 of the transcript of the charge which was criticised as involving speculation on the part of the trial judge.


[85] Although the matter does not figure in ground of appeal (2), it was argued before us that the trial judge had failed to give appropriate directions to the jury as regards the operation of the defence provided for by section 57(2) and the operation of section 118 in relation to that defence. We have come to agree with those submissions. Where a statutory defence is specifically provided for, as in section 57(2) and there are statutory provisions relating to the onus of proof in relation to such a defence, in our view, specific directions regarding those matters should be given to the jury. That was not done in this case. We regard this as a material misdirection productive of a miscarriage of justice, in the circumstances of this case, where there was a particular defence, which we have already described.


[86] It was faintly argued on behalf of the appellant that his conviction on charge (4), brought under section 54(1) of the 2000 Act should also be quashed, apparently upon the basis that there was a failure on the part of the trial judge to give appropriate directions on the defence to that charge. However, that matter is not focused in any ground of appeal and we therefore decline to give effect to that argument. No doubt for that reason, the Advocate depute did not deal with it.


[87] In these circumstances we are minded to quash the appellant's conviction on charge (1) of the indictment. The case will be put out By Order two weeks after the issue of this opinion to enable the Crown, if so advised, to seek authority to bring a fresh prosecution on that charge.


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