England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
HIS HONOUR JUDGE WALL
T20151390; 20160337

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/03/2018

Lord Justice Treacy:

1. This matter comes before the court as an appeal against conviction and an application relating to sentence. The appellant was convicted on 15 December 2016 at Birmingham Crown Court of six offences. Count 1 involved engaging in the preparation of terrorist acts contrary to s.5 of the Terrorism Act 2006. Counts 2-4 related to dissemination of a terrorist publication contrary to s.2(2)(d) of the Act. Counts 5 and 6 were offences of sending an electronic communication with intent to cause distress or anxiety contrary to s.1(1)(a) of the Malicious Communications Act 1988.
2. For Count 1, the offender was sentenced to an extended determinate sentence of 13 years comprising a custodial element of 8 years and an extension period of 5 years. For Counts 2-4, concurrent terms of detention in a young offender institution for 3 years were imposed. On Counts 5 and 6 two consecutive sentences of 6 months' detention of a young offender institution were imposed so that the overall term was an extended determinate sentence of 13 years plus a determinate sentence of 12 months' detention in a young offender institution. It was also ordered that the appellant be subject to Counter-Terrorism notification requirements for 15 years. The appeal against conviction relates only to Counts 2-4 and is a single ground of many initially advanced on behalf of the appellant. Those other grounds were rejected by the single judge and have not been renewed.
3. The sole remaining ground asserts that the judge in summing up failed or failed adequately to read down (pursuant to s.3 of the Human Rights Act 1998) the s.2 dissemination offence, pursuant to R v Faraz [2012] EWCA Crim 2820 in order to prevent the engagement of Article 10 (Freedom of Expression) of the European Convention on Human Rights and Fundamental Freedoms. There is a secondary point raised asserting that the judge misdirected the jury in the way he dealt with the definition of a "terrorist publication" by reference to the potential audience.
4. The appellant's submissions are that the judge should have directed the jury to read down s.2 as follows:

a) "acts of terrorism" means "criminal offences" (s.2(1));

b) "with a view to" means "with intent to" (s.2(2)(f));

c) "some or all" (s.2(3)) and "one or more" (s2.(6)) means "a significant proportion of those who read the publication";

d) "likely" means "probable" (s.2(3)); and

e) "indirect encouragement" is in relation to publications the "necessary implication" of which is the encouragement of terrorism (s.2(3)).

5. Section 2 of the 2006 Act provides as follows:

"Dissemination of terrorist publications"

(1) A person commits an offence if he engages in conduct falling within subsection (2) and, at the time he does so—

(a) he intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism;

(b) he intends an effect of his conduct to be the provision of assistance in the commission or preparation of such acts; or

(c) he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b).

(2) For the purposes of this section a person engages in conduct falling within this subsection if he—

(a) distributes or circulates a terrorist publication;

(b) gives, sells or lends such a publication;

(c) offers such a publication for sale or loan;

(d) provides a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of a gift, sale or loan;

(e) transmits the contents of such a publication electronically; or

(f) has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e).

(3) For the purposes of this section a publication is a terrorist publication, in relation to conduct falling within subsection (2), if matter contained in it is likely—

(a) to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism; or

(b) to be useful in the commission or preparation of such acts and to be understood, by some or all of those persons, as contained in the publication, or made available to them, wholly or mainly for the purpose of being so useful to them.

(4) For the purposes of this section matter that is likely to be understood by a person as indirectly encouraging the commission or preparation of acts of terrorism includes any matter which—

(a) glorifies the commission or preparation (whether in the past, in the future or generally) of such acts; and

(b) is matter from which that person could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by him in existing circumstances.

(5) For the purposes of this section the question whether a publication is a terrorist publication in relation to particular conduct must be determined—

(a) as at the time of that conduct; and

(b) having regard both to the contents of the publication as a whole and to the circumstances in which that conduct occurs.

(6) In subsection (1) references to the effect of a person's conduct in relation to a terrorist publication include references to an effect of the publication on one or more persons to whom it is or may become available as a consequence of that conduct.

(7) It is irrelevant for the purposes of this section whether anything mentioned in subsections (1) to (4) is in relation to the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally.

(8) For the purposes of this section it is also irrelevant, in relation to matter contained in any article whether any person—

(a) is in fact encouraged or induced by that matter to commit, prepare or instigate acts of terrorism; or

(b) in fact makes use of it in the commission or preparation of such acts.

(9) In proceedings for an offence under this section against a person in respect of conduct to which subsection (10) applies, it is a defence for him to show—

(a) that the matter by reference to which the publication in question was a terrorist publication neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and

(b) that it was clear, in all the circumstances of the conduct, that that matter did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under subsection (3) of that section) did not have his endorsement.

(10) This subsection applies to the conduct of a person to the extent that—

(a) the publication to which his conduct related contained matter by reference to which it was a terrorist publication by virtue of subsection (3)(a); and

(b) that person is not proved to have engaged in that conduct with the intention specified in subsection (1)(a).

(11) A person guilty of an offence under this section shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine, or to both;

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;

(c) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum, or to both.

(12) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (11)(b) to 12 months is to be read as a reference to 6 months.

(13) In this section—

"lend" includes let on hire, and "loan" is to be construed accordingly;

"publication" means an article or record of any description that contains any of the following, or any combination of them -

(a) matter to be read;

(b) matter to be listened to;

(c) matter to be looked at or watched."

We have emphasised the words above which the appellant contends should have been read down so as to protect the appellant's Article 10 rights.

6. Before we turn to those grounds we set out briefly the facts of the case which were not in dispute. Between December 2013 and January 2015 the appellant had sought advice from a man named Alexander Nash, obtained a passport, attended a paintballing day, planned to travel to Amsterdam, and in fact travelled to Turkey via Scotland, Belfast and Dublin, all in preparation for joining Islamic State (IS), a proscribed organisation, in Syria. Those were the matters relied on in relation to Count 1. The appellant, who was born in September 1996, had been 17 at the outset of the offending but the judge was satisfied that his preparations had continued in the way described after he had attained his 18^th birthday.
7. The Crown's case was that the appellant had become radicalised at the time he was leaving school and entering college. He had become fixated with the cause of IS and as a result took positive steps to advance its aims. He had initially planned to go to Syria to fight for IS and did so by consulting with Nash who himself was subsequently convicted of an offence contrary to s.5 of the 2006 Act. As part of the preparation he had met and trained with like-minded individuals on a paintballing trip in the UK. Thereafter, he made two attempts to get to Syria, the latter of which culminated in the refusal of entry at Istanbul airport by Turkish border security. Following those failures the appellant instead worked for the cause of IS in the UK and committed the offences set out in Counts 2-6.
8. He had tried to encourage others to act in support of IS. Counts 2-4 related to the dissemination of three videos supporting IS to a chat group called BOIS, consisting of himself, a co-accused, Zeb (who admitted three counts of dissemination of a terrorist publication and was sentenced to 21 months' detention in a young offender institution), and a man called Ibrahim Sharif who was called as a witness for the prosecution. All of them had been students at a college in Birmingham.
9. In addition, Counts 5 and 6 reflected the appellant's sending of messages to a local councillor designed to cause fear and distress. In May 2015 and April 2016 the appellant sent messages of an offensive and threatening nature because of the appellant's objection to the councillor's participation in the democratic process.
10. The appellant was of previous good character. The acts proved against him as set out above were not challenged. The issues at trial essentially concerned the appellant's intentions. As to Count 1, he denied doing any of the relevant acts with the intention of preparing to travel in order to fight with or for IS. In relation to Counts 2 to 4 he said he had no intention for the videos to be an encouragement to terrorism and did not acknowledge that they were "terrorist publications" as defined by the Act. In relation to Counts 5 and 6 the issue was whether he intended to cause distress or anxiety and whether the messages were grossly offensive or threatening.
11. The videos in Counts 2 and 3 were ISIS propaganda videos with the audio and subtitles in Arabic showing prisoners confessing "sins" against IS prior to being executed. The executions are clearly shown. In the first video six men are decapitated with their severed heads being deposited on or by their bodies. In the second, a man is shot in the head. These videos were, the prosecution said, designed in part to encourage others to kill or harm the enemies of IS and to justify and glorify such acts. The third video was a recruitment video, said to be designed to glorify the death or martyrdom of a Canadian convert who had travelled to Syria to fight for IS and who was said to have been killed in battle. The Crown's case was that fighting for IS and physically attacking or killing the enemies of IS are acts of terrorism requiring little elaboration.
12. The appellant's defence to the s.2 offences was twofold. He denied that the videos were terrorist publications (that they were capable of encouraging acts of terrorism) and he denied having the necessary state of mind when sending them. He asserted that he was ignorant of the content of the videos in Counts 2 and 3. As to Count 4, he said that he had only watched the opening 2 minutes of an 11-minute video. He had thought that the video simply concerned Islam and the situation in Syria, and he had sent it in order to raise awareness. In convicting the appellant the jury must have been satisfied to the criminal standard that he had viewed each of the videos and was aware of what they contained.
13. The submission that the judge failed to direct the jury in relation to Counts 2 to 4 in a manner which protected his Article 10 rights is based on the decision of this court in R v Faraz. In that case this court rejected a challenge to the adequacy of directions given by Calvert-Smith J (as he then was) which had sought to protect that defendant's Article 10 rights by defining the terms set out in bold in s.2 above in the way in which it is now contended the judge at the trial of the present matter should have done. That case was very different in context. It was a prosecution of a bookseller under s.2(2)(f). It involved different dissemination, different material and a different potential readership
14. We have considered the judgment in Faraz and are satisfied that, in dealing with that case and rejecting a submission that the judge's summing up had not gone far enough to protect that defendant's Article 10 rights, this court was not prescribing a form of words which was required to be used in every case. The decision on the ground in question was that the conviction was not unsafe because of the directions given to the jury. At no point did the court state that those directions should be employed in any other case.
15. At [54] the court said:

"We are concerned only with the definition of the offence as it was left by the judge to the jury and with the terms in which he guided them as to their legitimate approach. We are satisfied that in the judge's own words he defined the offence in a way which could not arguably offend the appellant's Art. 10 right to freedom of expression. It was perfectly obvious to the jury that they could not convict the appellant merely because his publication expressed a religious or political view, controversial or not. We do not consider it arguable that a publication which to the knowledge of the appellant carried a real risk that it would be understood by a significant number of readers as encouraging the unlawful commission of terrorist offences (as defined by the judge) is entitled to exemption (in consequence of Art. 10) merely because it expressed political or religious views."

16. Turning to the submission that the judge in the present case should have directed the jury that the expression of "acts of terrorism" should be interpreted as meaning "criminal offences" in a s.2 case in order to protect Article 10 rights, we begin by observing that the judge did not do this, despite being urged by the appellant's counsel to do so. Terrorism is defined in s.1 of the 2000 Act and includes the use of threat or action which involves serious violence against a person or endangers another's life where the use of threat is designed to influence a government or to intimidate the public and the use of threat is made for the purpose of advancing a political, religious or ideological cause. That definition is imported into the 2006 Act by s.20. As can be seen, the definition involves broadly described types of activity carried out for certain specified purposes. In relation to Count 1 the judge had said:

"…fighting for [IS] is a terrorist act as a matter of law…In this country, to fight for IS has been declared by Parliament to be an act of terrorism, and you must not go beyond that."

17. The Article 10 right guaranteeing freedom of expression is not an absolute right, but is qualified by Article 10(2) which provides that "the exercise of the right may be subject to such restrictions as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime". It is in our view clearly a legitimate objective to criminalise conduct which intentionally or recklessly encourages others to commit acts of terrorism, including acts of violence on behalf of proscribed organisations. The terms of s.2 do not prevent a person such as the appellant from holding offensive views or personally supporting a terrorist cause or communicating the fact that he supports such a cause. What s.2 prohibits is the intentional or reckless dissemination of a terrorist publication where the effect of an offender's conduct is a direct or indirect encouragement to the commission, preparation or instigation of acts of terrorism. The aim of s.2 is clearly lawful, proportionate and necessary, but we need to examine whether, in summing up, the judge did sufficient to protect the appellant's rights of expression so that he was not in danger of being convicted for conduct which fell short of the statute and represented a legitimate exercise of his rights.
18. In summing up the judge made plain that the basis upon which the prosecution was put was that the videos were calls for others to take up arms in support of IS and that thus they were a call to commit acts of terrorism. This was repeated on a number of occasions and thus made clear that that is what was meant by "acts of terrorism". In so doing, the judge was careful to spell out to the jury what would not come within the phrase "acts of terrorism". Having stated the Crown's suggestion that the videos were propaganda to encourage people to fight for IS, he continued:

"It is not a crime to support ISIS. The crime is in doing something illegal to further their cause."

Later, he said:

"Whether a video is likely to be understood by those who might see it as a result of the defendant's conduct as direct or indirect encouragement of them to commit a terrorist act is for you to decide. The video must, however, encourage the commission, preparation, or instigation of a terrorist act or acts. Encouragement to agree with the aims of an organisation, or express or show agreement and support, is not sufficient. That is because passive support of those organisations without more is legal and not a terrorist act."

19. The judge told the jury that terrorism meant the use or threat of action involving serious violence against the person or endangering life in a way which was designed to influence the government and was done for the purpose of advancing a political, religious or ideological cause. However, the judge had also stated:

"…you should be aware that merely agreeing with the views of IS, or, conversely disbelieving in things such as Western democracy, are not crimes in our country. We are all free here to believe what we will, but what we are not free to do is to cross the line and commit crimes just because we hold those views. Your task, therefore, is not to decide what beliefs the defendant held, but whether holding the beliefs that he did he overstepped the permissible line and committed criminal acts."

20. In those circumstances we are amply satisfied that the judge's directions to the jury made plain to them what acts came within the definition of "acts of terrorism" and what did not. It was clear that "acts of terrorism" in this case referred to unlawfully fighting for IS, a proscribed organisation. It was equally clear that the jury could not convict the appellant merely because the videos expressed a religious or political view.
21. In any event we agree with the submissions made by Ms Whyte QC on behalf of the Crown that in relation to Counts 2 and 3, where the appellant claimed ignorance of the contents of the videos, it is hard to see how his Article 10 rights were engaged in respect of those videos. As to Count 4 where the appellant's case was that he had only viewed the opening part of the video and thought that it concerned Islam and the situation in Syria, and that he had sent it in order to raise awareness, his Article 10 rights were potentially engaged. However, his factual defence in this respect was left to the jury and was rejected.
22. For these reasons, we are unpersuaded that there was, as asserted, a failure adequately to take account of the appellant's Article 10 rights. None of the other points raised as to a reading down of s.2 has any force. "Likely" in s.2(3) is an ordinary, comprehensible word; replacing it with "probable" would not have assisted the jury further. "Indirect encouragement" in s.2(3)(a) does not, in our view, need to be replaced by "necessary implication", a phrase which is arguably less clear. In directing the jury on this point the judge said:

"Things which are likely to be understood by members of the public as indirectly encouraging them to commit, prepare, or instigate acts of terrorism are likely to include things which glorify the commission in the past, future, or generally of terrorist acts, and encourage that act to be copied. You decide whether that is what appears in these videos."

That explanation seems to us as being perfectly clear and adequate.

23. As to "some or all" in s.2(3) and "one or more" in s.2(6) we do not think that in the circumstances of this case where the dissemination had been to two individuals, that any further explanation was required. Finally, the suggestion that "with a view to" should have been explained as meaning "with intent to" overlooks both the fact that the suggested phrase provides no meaningful additional explanation and the fact that in any event, the Crown was relying on s.2(2)(d), not s.2(2)(f).
24. As to the subsidiary argument that the judge wrongly permitted the jury to consider the definition of "terrorist publication" by reference to a wider audience than the two men to whom he had distributed the videos, the Act requires a jury to consider the likely effect on some or all of those to whom a video may become available as a result of a person's dissemination. Once the appellant had distributed the videos as he had, he had no control over onward dissemination by others, and it was clear that Sharif had made plain his desire to open up the BOIS group to others. We find no fault with the judge's directions in this respect. Accordingly, the appeal against conviction must be dismissed.
25. We turn next to sentence. The grounds of appeal submit that the judge was in error in concluding that this appellant was a dangerous offender and further submit that the judge failed to identify the correct staring point for a custodial sentence, pursuant to R v Kahar and Others [2016] EWCA Crim 568. It was also submitted that the sentence failed properly to reflect the features of the case and to take sufficient account of the appellant's age at the start of the offending behaviour. It was said additionally that the judge failed to have regard to totality.
26. The judge's sentencing remarks were careful and informed by the evidence he had heard at trial. As already stated, the judge was sure that the appellant had committed the last three identified acts of preparation for terrorism (paintballing and two attempts to travel to Syria) after he had turned 18. That did not mean that he was not alive to the offender's relative youth; he was aged 20 at the time of sentence. That was a factor which the judge clearly and expressly bore in mind in assessing dangerousness and in deciding the custodial term.
27. The judge was satisfied that this offender was dangerous. He commented on the strength and depth of the appellant's views and that his involvement had been over a protracted period. The judge's assessment was that even in the light of the appellant's current position he had shown, in giving evidence, that he still adhered to his extremist views. Whilst on the one hand the pre-sentence report had concluded that the appellant posed a substantial danger to members of the public, a report of a Mr Karmani had suggested that the appellant was open-minded and potentially prepared to change. The judge took full account of Mr Karmani's report but said that he could not accept that the appellant was open to change in the way suggested, based on what he had seen and heard. It could not be an answer that the appellant no longer posed a risk because he was on the radar of the police and security services. Nor could reliance be placed on the fact that the appellant's mother had confiscated his passport – he had still managed to go abroad after that had happened.
28. It is clear to us that the judge approached the question of a finding of dangerousness with care and we reject the submission that he can be criticised for his finding. It was one which was fully open to him in the circumstances of this case. As to the submission that this case should have fallen within Level 6 as identified in Kahar, we do not think that there is any credible argument. The appellant had done his level best to prepare for travel and to get to Syria in order to fight. This would squarely put him within Level 5 of Kahar, and the judge was entitled to have additional regard to the appellant's continued activities in this country after he had failed to get to Syria. In the circumstances, where a concurrent term was imposed for Counts 2-4, the custodial term of 8 years is unassailable. For these reasons, we refuse the application in relation to sentence.