Hamza, R. v

Where the territorial reach of an offence of soliciting murder raises a difficult and controversial issue of statutory construction, it may properly be reserved for determination at a full appeal hearing. Whether speeches were capable of inciting murder, and whether possession was supported by a reasonable excuse, may be matters for the jury where the evidence permits either conclusion.

In the context of armed conflict, an aggressive killing other than in self-defence may be murder. However, encouragement to join opposing armed forces does not necessarily amount to solicitation to murder. Freedom of expression does not protect the intentional incitement or solicitation of murder.

The applicant, Abu Hamza, renewed his application for leave to appeal against convictions at the Crown Court at Woolwich before Hughes J and a total sentence of seven years’ imprisonment. The convictions included soliciting murder, racial-hatred offences and possession of material likely to be useful for terrorism.

He contended, among other matters, that the alleged solicitations were insufficiently specific, that he had a reasonable excuse for possessing the Encyclopaedia of Jihad, that the jury had been misdirected on racial hatred and armed conflict, and that publicity and delay had rendered the proceedings unfair. The central issue was which grounds were properly arguable before a Full Court.

1. The renewed application for leave to appeal against conviction was granted in part. Grounds 1 to 6 were arguable and were directed to proceed to a full hearing. In particular, the proper construction and territorial ambit of section 4 of the Offences Against the Person Act 1861 raised a difficult and controversial question: whether soliciting non-citizens to murder foreigners abroad was justiciable.

2. The Full Court should also consider whether extensive pre-trial and trial publicity affected the fairness of the proceedings, particularly because the alleged offences pre-dated 2000 but prosecution began in 2004.

3. The remaining conviction grounds were unarguable. There was evidence sufficient to leave to the jury whether the applicant’s words solicited murder; the asserted vagueness of targets and circumstances did not require withdrawal of the case from them.

4. The question whether the applicant had a reasonable excuse for possessing the Encyclopaedia of Jihad, notwithstanding its return by police in 1999, was correctly left to the jury with his explanations and the relevant circumstances. The judge’s direction under section 17 of the Public Order Act 1986, as amended, sufficiently required the jury to consider alleged racial hatred directed against Jews generally.

5. The direction on armed conflict was legally correct and favourable to the applicant. An aggressive killing outside self-defence may be murder even during civil war or armed conflict. Yet encouragement limited to joining a frontline or defending others from an imminent attack might not establish encouragement of murder, because the jury could not be sure that unlawful killing was being encouraged.

6. Intentional solicitation or incitement of murder is not an acceptable exercise of free speech. The application for leave to appeal against sentence was refused because the sentence was neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division): On a renewed application, granted leave to appeal against conviction on grounds 1 to 6, but refused leave on the remaining conviction grounds and against sentence.

• Crown Court at Woolwich: The applicant was convicted before Hughes J and a jury of six counts of soliciting murder, racial-hatred offences and possession offences, and received a total sentence of seven years’ imprisonment.