M & Ors, R. v

Although physical electronic storage devices are articles for the purposes of section 57, documents and records cannot be prosecuted under that provision merely by describing them as articles. Terrorism Act 2000 section 58 establishes a distinct regime for records and documents containing information likely to be useful in committing or preparing terrorism. That regime, including its requirements and reasonable-excuse defence, cannot be bypassed by reliance on the more broadly framed section 57 offence.

Five appellants faced charges under sections 57 and 58 of the Terrorism Act 2000 arising from their alleged possession of radical Islamist material on CDs, computer hard drives, other electronic storage devices and, in one instance, printed documents.

At a preliminary hearing, the Recorder of London rejected the appellants’ contention that the assumed facts could not amount to an offence under section 57. The prosecution had added section 57 counts alongside substantially corresponding section 58 counts, principally because section 57 also refers to the instigation of terrorism.

The appeal raised whether electronically stored data, and the physical devices carrying it, could found a section 57 charge, and whether section 57 could be used for documents and records otherwise addressed by section 58.

1. Appeal allowed. The court agreed with the Recorder that the physical items specified in the section 57 counts, including CDs, hard drives and other storage devices, were articles. The issue was not whether the electronically stored data itself was an article. A CD which requires a computer to be read is not materially different from a book which requires reading assistance. Section 121’s inclusive definition of article therefore covered the listed physical items (see paras [31]-[32]).

2. That conclusion did not permit the Crown to prosecute the possession or making of documents and records under section 57 simply by describing them as articles. Penal provisions were to be strictly construed. The wording and juxtaposition of sections 57 and 58 showed that Parliament deliberately created a separate regime for documents and records (see paras [33]-[36]).

3. Section 57 concerns possession in circumstances giving rise to reasonable suspicion of a purpose connected with the commission, preparation or instigation of terrorism. Section 58 instead requires, for documents and records, information of a kind likely to be useful to a person committing or preparing terrorism, subject to the statutory reasonable-excuse defence. Parliament did not use section 57’s more diffusely drawn language for documents and records. Section 58 could not be rendered effectively redundant or sidestepped in that way.

4. The court did not need to consider the ECHR submission or the further ruling for which leave to appeal was sought. It added practical guidance that, on a section 58(1)(b) count, the jury should first decide whether the item contains information likely to be useful for committing or preparing the alleged terrorism and, if so, consider reasonable excuse. The burden on the defendant concerning reasonable excuse is evidential only under section 118 (see para [39]).

• Court of Appeal (Criminal Division): Allowed the appellants’ appeal from the Recorder’s preliminary ruling and held that section 57 could not be used to bypass the documents-and-records regime in section 58 of the Terrorism Act 2000.
• Recorder of London: At a preliminary hearing, rejected the submission that the assumed facts could not amount to an offence under section 57 and granted leave to appeal.