England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEEDS CROWN COURT
HHJ Collier QC, The Recorder of Leeds
T20150896

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/11/2016

Lady Justice Rafferty:

1. On 28^th October 2015 in the Crown Court at Leeds Adeel Amjad (35) was convicted of possession of a record containing information contrary to s.58(1)(b) Terrorism Act 2000.   On 11 December 2015 he was sentenced to 12 months imprisonment suspended for 24 months.
2. He appeals against conviction by leave of the single judge. 
3. On 5^th November 2013 a search of his home revealed a large quantity of documents including publications "Defence of the Muslim Lands" and "The Religious and Moral Doctrine of Jihaad" A notebook contained his handwritten list of fitness requirements for a Mujahaddin fighter, described as "Mujahid minimum training".  Computers, phones and laptops from his house did not reveal internet searches.
4. The Crown's case was that in the context of other anti-western documents in his home and of its provenance his handwritten list of fitness exercises was intended to be of assistance to someone planning to commit an act of terrorism. Police internet searches revealed a similar list of fitness requirements in a document "Crusaders War on Iraq" ("Crusaders War") and in a Wikipedia reference to its author Yusef Al Aliyi ("Yusuf") as a terrorist. The Crown suggested it was no coincidence that material identical to that in the notebook was on the internet and was attributed to a known terrorist engaged in Jihad. 
5. The appellant answered no questions in interview. His case was that the material was simply a regime for getting fit given to him by a friend years previously and it did not reflect his beliefs. He had not heard of Yusuf or of Crusaders War. He gave evidence and relied on his good character.
6. The issue was whether the page had been written as part of a fitness regime – his case - or, by showing how to get fit for war, could further acts of terrorism by the appellant or someone else – the Crown's.
7. Police officers from the North East Counter Terrorism Unit via Google found on the Islamic Awakening website an almost identical list of exercises as was written by the appellant in the notebook. Officers entered "Sheikh Yusef Al Aliyi", and came across Crusaders War about how to conduct a guerrilla war, particularly against the US in Iraq. It contained similar, although not quite the same, phraseology as the list in the notebook. The officers did not know who had written the items thrown up by their search or when they were posted.
8. The appellant told the jury that Shiraz from the Dewsbury Sports Centre when the appellant was trying to lose weight gave him the exercise list and he copied it into the notebook. The exercises were too difficult so he put the notebook into the wardrobe and had not taken it out for seven or eight years. The other documents were pamphlets he had from time to time been given. He denied making up his account that Shiraz's number might have been on a phone the police took from his address. He could not recall why Shiraz was not mentioned in his Defence Statement.
9. He did not hold the beliefs set out in the documents. He had not heard of Yusuf or of Crusaders War.

The Judge's ruling

10. The Crown contended successfully that to establish the intention behind the document it should be permitted to rely on open source material. It did not have an expert witness to describe that material. It argued that it was significant that the document found in open source research, and which it argued was strikingly similar to the appellant's list, featured in two places online and both sources ascribed it to Yusuf, a terrorist.
11. The defence argued that it was wrong to admit the material because its source was unsafe. The Wikipedia author was unknown.
12. The Recorder permitted the Crown to lead evidence that the source of the exercises was a terrorist and of the context in which the list was produced. The jury would be warned about the dangers of the research, but would be entitled to use the material to assist if struck by the similarity between the document on Wikipedia and another separate article. The Recorder would admit the material with heavy caveats.
13. He was as good as his word. The jury was directed that it could not convict solely on the basis that the open source evidence showed that the Appellant's list of training requirements was identical to that attributed to a terrorist.  The direction warned against the possible dangers arising from such evidence and the limited use to which it could be put. The Recorder emphasised that there was no evidence of who created the articles or when. 

Grounds of appeal

14. The judge was wrong to admit the open source material relating to the source and to the author of the original list. There was no power at common law or in reliance on the Criminal Justice Act 2003 or on the Coroners and Justice Act 2009 to admit anonymous hearsay. Despite warnings to the jury, the admission led to an unsafe conviction. 

Oral submissions before us

15. Resisting the appeal the Crown suggested that the material, both that found in the appellant's home and that found in open search on the internet, was hearsay.  Whilst the Recorder did not in his ruling or summing-up refer to hearsay provisions the material, the Crown argued, could be adduced through them.
16. In any event the remaining evidence was of such strength that a properly directed jury would without the disputed evidence have convicted. It argued that a wealth of evidence contradicted the assertion that the document was in the appellant's possession for innocent reasons. The list appeared on the internet in a number of locations.  In each it set out the same series of exercises in the same order and in each Yusuf was named as the author. Further investigation revealed Yusuf's connections to Al-Qaeda, and that he had written Crusaders War.
17. Crusaders War set out combat strategies for guerrilla warfare and the training requirements appeared in that context.  It was attributed to Yusuf both on its title page and from other sources within the open source research.  Nothing recovered from that research indicated that the list had not arisen as suggested or that Yusuf was not its origin.  
18. The Crown contended that the served evidence established its case that Yusuf was the source of the exercises.  The identity of the author of Crusaders War was known as were the identities of those who identified Yusuf as connected to Al-Qaeda and terrorism.  This, it assured us, was hearsay but not anonymous hearsay.    
19. The Recorder albeit silent as to them plainly, in the view of the Crown, considered the S114 Criminal Justice Act 2003 ("CJA") factors. The probative value of the evidence was significant. Although the Crown could not show that the Appellant had viewed the material recovered by the police from the internet, that a strikingly similar list of fitness requirements had been attributed to a known or suspected terrorist was significant. That the same list had been attributed to the same individual in other locations underpinned its being of a kind likely to be useful within the terms of the Terrorism Act 2000.
20. How this material had gone online was unknown.  However, its striking similarity both to the list recovered from the appellant and as between other lists recovered was significant, suggesting consistency and common authorship.  
21.  Police had recovered other articles, published by von Roel Meijer, said to be a Dutch academic, which it argued supported its case. We were told that it served as unused material the outcome of enquiries which confirmed that an individual named von Roel Meijer was employed at the university the author listed as his place of work.
22. No expert was called to confirm authorship of the list found in open source. The Crown accepted that the appellant would have difficulty challenging attribution.  However, it was not its case that the appellant knew the origins of the list, whose admission was not so as to allow the jury to conclude that because it was written by a terrorist the appellant must be guilty, but so as to help the jury on whether the material were useful within the terms of the Terrorism Act 2000. That the original source was a terrorist and the context in which that list appeared in Crusaders War were each matters of significance to an issue in the case.  
23. The Crown's fallback argument was that even if this material were wrongly admitted an abundance of other evidence supported its case:  The context in which the list was found in the notebook and the other entries before and after the list without more set up an implication that the appellant had an interest in jihad. Those matters were led without objection. A further publication in which jihad was discussed supported a clear and maintained interest. The Appellant had failed to answer questions in interview and failed in his Defence Statement to identify Shiraz, the person who, he told the jury, provided the list.  
24. The Crown argues that coupled with the standard direction to avoid research online, the Recorder's strong tailored direction ensured the jury did not place undue weight upon the material and, careful and structured as it was, rendered any prejudice negligible. 
25. No argument was raised below by either party in relation to the statutory framework for admission of hearsay evidence so it was not surprising that the ruling was directed to those arguments which were advanced.  The court had a residual discretion by way of s78 Police and Criminal Evidence Act 1984 ("PACE") and the Appellant in his submissions below had relied on its provisions not those of the CJA.

The legal framework

26. s58(1)(b) of the 2000 Act reads where relevant:

"58 Collection of information.E+W+S+N.I.

This section has no associated Explanatory Notes

A person commits an offence if:

(a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or

(b) he possesses a document or record containing information of that kind."

Discussion and conclusion

27. Before the jury could convict the Crown had to prove that the information was designed to provide practical assistance to a person committing or preparing an act of terrorism. That is by now accepted as excluding everyday information contained in, for example, a map or railway timetable: R v G and R v J [2009] UKHL 13; 2 WLR 724; [2009] 2 Cr App R4. "Designed" need not import the maker of the document having in mind practical assistance.  It is sufficient that by its nature the information is designed to provide it.
28. The Crown, seeking to differentiate the information in the appellant's possession from an innocuous map or timetable or fitness regime, was entitled to rely on its similarity to literature online which linked the fitness regime to a likely intended use for terrorism.  If it succeeded in proving that association the burden shifted to the defence to show reasonable excuse by leading evidence of an innocent purpose: S58(3).
29. It was open to the Crown, if it could, to lead evidence showing that the exercises were intended for use by potential terrorists. 
30. The Crown made no attempt to contact von Roel Meijer or the university. It could not say who wrote the Wikipedia entry about Yusuf. It accepts that it could not prove Yusuf to be a terrorist, the author of either book, or an associate of bin Laden. 
31. The Crown's case however was not that these were proven facts.  Rather it sought to establish that there was evidence that Yusuf was considered a terrorist. It relied on DC Healey, who had done or was familiar with the searches, to tell the jury that and to add that authorship of Crusaders War was attributed to Yusuf.
32. That evidence – that Yusuf was considered a terrorist - was of the fact of the perception rather than evidence that what was perceived was also true. There is no hearsay issue in the notebooks – they were not relied on for the truth of any matters stated – whose content one might paraphrase, albeit with an element of exaggeration to make the point, as "100 sit ups make a good terrorist". Neither was the material on the internet relied on for truth, merely to show that it is similar to that which the Appellant possessed. Had the material on the internet been couched not in words but in images of individuals demonstrating exercises the Crown would have advanced its case in the same way, relying on the striking similarity of the fitness poses etc. It would be odd to describe such images as hearsay.
33. There is on these facts no hearsay and no anonymous hearsay issue.
34. All the Crown has to prove is that the information could be useful to a terrorist.  That does not mean it has to prove the information is true.  It is possible to prove that something is likely to be useful even though not true. Were the document entitled "100 lies told by Jews and unbelievers about Islam" it is unrealistic to assume the Crown would be expected to prove the truth of the "lies".
35. The evidence from the internet was led to support the contention that the exercises and fitness regime were not innocent but derived from sources associated with the terrorist cause, whether or not the information drawn from the internet were true.  It was, therefore, not essential to the Crown's case that the information online was true and accurate; it was enough that it included descriptions of training exercises in terms so similar to those in the Appellant's possession as to rebut coincidence.  That is how the Recorder analysed the task for him after submissions and how he directed the jury.
36. We agree. Consequently the topic of hearsay was correctly absent from his ruling since it was not the point. The jury was not invited to conclude that the internet-derived material amounted to the truth. The Recorder cautioned the jury to beware of the use it made of it and directed it not to convict on the basis that material identical to that found in the Appellant's home was also on the internet and attributed to a person believed to be a terrorist engaged in Jihad.  At most, he said, it might be some support for the Crown's case.
37. That said, we were surprised the Crown made no effort to canvass expert evidence at least capable of establishing the provenance of some if not all open source material and perhaps of establishing authenticity and accuracy. Had it been able to lead any such the court might have been better served. For all we know the Recorder might not have added, or might have tempered, his final caution to the jury.
38. Finally, under s78 PACE 1984 the balancing exercise is for the judge, and this court will not lightly interfere. We were however conscious that the open source material included vocabulary - bin Laden, Al Quaeda, jihadi terrorists and war waged by crusaders - with the potential to alarm. Before reaching a conclusion on this appeal we reflected on whether by virtue of the vocabulary there existed a risk of prejudice which should prompt us to question the fairness of the trial.
39. The judge's uncompromising and powerful warning to the jury we are confident was a sufficient safeguard.
40. This appeal is dismissed.