R v F

The definition of terrorism in section 1 of the Terrorism Act 2000 protects foreign governments regardless of whether they are democratic, representative or tyrannical. The Act creates no exemption for violence said to advance a just or morally justified cause.

A defendant cannot rely on opposition to an undemocratic regime as a reasonable excuse for possessing terrorist information where that excuse would recreate an exemption which Parliament deliberately omitted. A judge may rule such an asserted excuse incapable in law of founding the statutory defence, without usurping the jury’s fact-finding function.

A Libyan asylum seeker was charged with two offences under section 58(1)(b) of the Terrorism Act 2000. The prosecution alleged possession of material concerning the manufacture of explosives and the establishment of a terrorist cell.

At a preparatory hearing, Mackay J ruled that the definition of terrorism extended to action directed against Libya notwithstanding the nature of its government. He also ruled that opposition to an illegal or undemocratic regime could not, as a matter of law, amount to a reasonable excuse under section 58(3).

The appeal challenged both rulings. The central issue was whether the statutory scheme exempted, expressly or by implication, terrorism undertaken against a tyrannical or unrepresentative foreign regime.

1. Appeal dismissed. Section 1 of the Terrorism Act 2000 applies to terrorist action directed against a foreign government whatever its constitutional character. The ordinary meaning of a government of a country other than the United Kingdom is clear. There was no ambiguity to be resolved in the defendant’s favour and no basis for applying ejusdem generis reasoning.

2. The breadth of the definition was deliberate. It covers action outside the United Kingdom and protects foreign populations and governments without a list of approved states or an exemption for terrorism in a cause said to be just. Section 1(3) further provides that action involving firearms or explosives is terrorism even if it was not designed to influence a government or intimidate the public. Convention rights and international-law principles did not permit the court to insert a qualification which Parliament had not enacted.

3. The proposed section 58(3) defence was legally incapable of amounting to a reasonable excuse. It was circular to assert that possession of terrorist material was excused because it formed part of the very terrorist activity prohibited by the Act. Acceptance of the argument would make the statutory definition ineffective. The court did not exclude other factually available reasonable excuses, nor did it affect a defence that the documents did not contain useful terrorist information or were not knowingly possessed.

4. The judge was entitled to determine that threshold question of law at the preparatory hearing. A jury decides disputed facts, but evidence supporting an excuse which cannot in law be reasonable is irrelevant and inadmissible. The reasoning in R v Jones [2006] UKHL 16 supported the conclusion that private resort to violence in pursuit of a perceived public interest is tightly limited.

5. Parliamentary materials were unnecessary to construe the Act, and the statutory requirement for prosecutorial consent under section 117 did not affect the meaning of the provisions.

• Court of Appeal (Criminal Division) — dismissed the appeal and upheld the preparatory rulings on the scope of terrorism and the availability of a reasonable excuse.
• Woolwich Crown Court — Mackay J held, at a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, that the statutory definition extended to the foreign regime concerned and that the proposed just-cause excuse was unavailable in law.