El-Faisal, R v

For soliciting to murder, the prosecution must prove that the defendant intended to solicit or encourage an unlawful killing. A claimed limitation to killings in self-defence must be assessed by reference to the defendant’s intended meaning and the circumstances of the killing encouraged.

A summing-up need not contain every further formulation suggested on appeal. A conviction remains safe where the jury received correct directions on unlawfulness and intention, clearly understood the defence case, and rejected on the evidence the asserted limitation upon the solicitation.

The appellant was convicted at the Central Criminal Court of three counts of soliciting to murder under section 4 of the Offences Against the Person Act 1861. The convictions arose from recordings in which he urged violence against non-believers, including Americans, Jews and Hindus. He was sentenced to seven years’ imprisonment on those counts.

His appeal against conviction was confined to whether the trial judge had adequately directed the jury on the requirement that the killing solicited be unlawful. He contended that his words were confined to fighting in particular theatres of conflict, where conduct might amount to self-defence, rather than indiscriminate killing.

1. Appeal dismissed. The convictions for soliciting to murder were safe.
2. Murder requires an unlawful killing with the requisite intent. A killing is not unlawful where it is justified or excused, including the use of force that is necessary and reasonable in self-defence or defence of another. In a charge of soliciting to murder, the material question is the solicitor’s state of mind. The jury must decide whether the defendant intended to encourage only killings that would occur in such lawful circumstances, or killings irrespective of attack or threat.
3. The judge’s directions correctly identified the need for the prosecution to prove that the words solicited or encouraged the unlawful killing of the persons specified, and that the appellant intended that result. The directions also made clear that a religious justification could bear upon intention but was not itself a legal defence.
4. The court assumed, without deciding, that a genuinely limited exhortation to fight in a particular conflict where Muslims acted in self-defence could provide an answer to the charge. Although a specific direction on that possible application would have been preferable, its absence did not make the summing-up erroneous or unfair.
5. Read as a whole, the summing-up placed the appellant’s battlefield explanation squarely before the jury. The prosecution case was that the exhortations invited indiscriminate killing beyond a battlefield. The jury were plainly able to assess, and rejected, the asserted limitation in the appellant’s intended meaning. The issue of unlawful killing was therefore properly left to them.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2004] EWCA Crim 456.
• Central Criminal Court — HHJ Beaumont QC presided over the jury trial. The appellant was convicted of three counts of soliciting to murder and sentenced to seven years’ imprisonment on those counts.