M, R. v

Documents and records containing information are governed by the distinct statutory regime in section 58 of the Terrorism Act 2000. Section 57 cannot be used merely by calling those documents or records articles, so as to bypass the requirements and defence provided by section 58.

Although a compact disc or other electronic storage device is capable of being an article, Parliament did not intend the more broadly drawn section 57 offence to make section 58 redundant. Penal provisions require strict construction. A prosecution concerning material stored electronically must therefore proceed under section 58 where the alleged wrongdoing is the making or possession of a document or record containing information.

The appellants faced charges under sections 57 and 58 of the Terrorism Act 2000 arising from alleged possession of radical Islamic material, including compact discs, computer hard drives, other electronic storage devices and documents. The prosecution had added section 57 counts alongside substantially mirror-image section 58 counts.

At a preliminary hearing, the Recorder of London rejected the appellants’ submission that the assumed facts disclosed no offence under section 57, and granted leave to appeal. The central issue was whether the electronic storage devices and documents could properly found section 57 charges, rather than whether electronically stored data itself was an article.

The appeal was allowed. The Recorder’s ruling could not stand, although the court reached part of the analysis by a route different from that advanced below.

1. The relevant compact discs, hard drives, other storage devices and documents were all capable of being articles. There was no practical distinction between a readable book and a compact disc which required a computer to read it. The fact that a device required equipment to access its contents did not prevent it from being an article within section 57 of the Terrorism Act 2000.

2. That conclusion did not determine the appeal. Sections 57 and 58 had to be construed together and strictly, as penal provisions. Parliament had established a separate regime in section 58 for the making, collection and possession of documents and records containing information. Section 58 confined the relevant information to that likely to be useful to a person committing or preparing an act of terrorism, and provided a reasonable-excuse defence.

3. Section 57 could not be used to circumvent that regime by describing a document or record as an article. In particular, the additional reference in section 57 to instigation of terrorism did not permit the prosecution to use section 57 for documents or records which did not satisfy section 58. That construction preserved the deliberate distinction between the two provisions and prevented section 58 from becoming redundant.

4. The court added practical guidance on the section 58(1)(b) counts. If the jury was sure that an item contained information likely to be useful to a person committing or preparing the alleged acts of terrorism, it would then consider whether the defendant had a reasonable excuse for possessing it. The defendant’s burden concerning reasonable excuse was evidential only.

• Court of Appeal (Criminal Division) — by [2007] EWCA Crim 298, allowed the appeal from the Recorder’s preliminary ruling and held that section 57 could not be used to bypass the separate section 58 regime for documents and records.
• Recorder of London — at a preliminary hearing, rejected the submission that the assumed facts did not disclose an offence under section 57 and granted leave to appeal.