Zafar & Ors v R

Section 57 of the Terrorism Act 2000 requires a direct connection between the article possessed and the commission, preparation or instigation of a terrorist act. It does not extend to possession merely connected with a remote stage of a proposed plan, such as travel or training.

Possession of propaganda may fall within the section where it is intended for future use to incite a person to commit a terrorist act. A jury must be directed to decide whether that specific intended use was proved. It is insufficient that material was intended only to sustain enthusiasm or resolve. The question of how to identify the purpose of possessing a general-purpose article was left open.

The five appellants were convicted before the Recorder of London of possessing articles for a purpose connected with terrorism, contrary to section 57 of the Terrorism Act 2000. The articles were computer discs and drives containing extremist ideological material and communications.

The prosecution alleged that the appellants intended to travel to Pakistan, undertake training and then fight against the Afghan Government. It contended that the material was collected and used to guide, inspire and sustain that plan. Following earlier interlocutory rulings on whether electronically stored information could be an article under section 57, the prosecution proceeded at trial on the section 57 counts alone.

On appeal, the central issues were the proper scope of section 57, whether there was a case to leave to the jury, and whether the summing-up correctly identified the necessary connection between the material and a terrorist act.

1. The appeals were allowed and the convictions quashed. The Recorder’s directions did not require the jury to find the statutory nexus that section 57 demands.

2. Section 57 of the Terrorism Act 2000 must be read narrowly so as to meet the requirement of legal certainty. It requires that the article be intended for use directly in the commission, preparation or instigation of an act of terrorism. A purpose merely connected with an earlier or remote part of a wider plan does not suffice.

3. The court held, although with hesitation, that instigation includes incitement. Accordingly, a document possessed for the purpose of inciting a person to commit an act of terrorism can fall within section 57. The court noted that this construction went beyond what those responsible for the provision may have envisaged, and that later legislation expressly addressed possession of propaganda intended to induce terrorism.

4. On the prosecution case, only fighting against the Afghan Government was capable of being the alleged terrorist act. Travel to Pakistan and training there were not themselves terrorist acts. The jury should therefore have been directed to decide whether each appellant intended to use the relevant material to incite fellow planners to fight in Afghanistan.

5. The summing-up instead treated travel, training and fighting as a composite terrorist act, and suggested that it was enough for the material to sustain the group’s enthusiasm and resolve. The court doubted whether the evidence disclosed a section 57 case on its proper construction. In any event, the directions made the basis of conviction unsound.

6. The court reserved the distinct question whether a general-purpose article, such as a computer, can be characterised as possessed for every intended use of material stored on it.

• Court of Appeal (Criminal Division) Allowed the appeals against conviction and quashed the convictions: [2008] EWCA Crim 184.
• Central Criminal Court The Recorder of London convicted the appellants on 24 July 2007 under section 57 of the Terrorism Act 2000 and imposed custodial sentences. Earlier preparatory and interlocutory rulings considered whether electronically stored information could constitute an article for section 57.