K v R

Terrorism Act 2000, section 58, applies only to documents or records containing information likely to give practical assistance in committing or preparing terrorism. Material which merely encourages terrorism is outside the section. The information must itself raise a reasonable suspicion that it is intended for such assistance. Extrinsic evidence may explain the nature of apparently technical information, but cannot make an innocuous document criminal solely by proving the possessor’s intended use. A reasonable excuse is an explanation that possession was for a purpose other than assisting terrorism, even if that other purpose is unlawful. Construed in this way, the offence is sufficiently certain to satisfy the doctrine of legality.

K faced three counts under section 58 of the Terrorism Act 2000. The counts concerned an Al Qaeda training manual and two publications said to contain information likely to be useful to a person committing or preparing terrorism.

At a preparatory hearing, His Honour Judge Stewart QC rejected K’s submission that the prosecution was an abuse of process. He also refused leave to appeal. The Court of Appeal granted permission and considered whether section 58 lacked legal certainty and whether it extended to theological or propagandist material.

1. Appeal dismissed. The prosecution was not an abuse of process on the ground that section 58 of the Terrorism Act 2000 lacked certainty, once the section was given its proper construction ([16]–[17]).
2. Section 58 is confined to documents or records containing information likely to provide practical assistance in the commission or preparation of terrorism. The court contrasted section 58 with section 2(3) of the Terrorism Act 2006. A publication which merely encourages terrorism may fall within section 2(3)(a), but does not thereby fall within section 58. Section 58 instead corresponds to information described by section 2(3)(b) ([12]–[13]).
3. The prohibited information must, by its nature, raise a reasonable suspicion that it is intended to assist the preparation or commission of terrorism. Extrinsic evidence may explain the nature of the information, as illustrated by the substitution-code example in R v Rowe [2007] EWCA Crim. It cannot be used to transform an innocuous document into prohibited material by showing the possessor’s intended use ([14]).
4. A reasonable excuse under section 58 is possession for a purpose other than assisting terrorism. The alternative purpose need not itself be lawful ([15]).
5. The separate contention that the material was propaganda did not justify a stay. Whether a particular document was legally capable of falling within section 58 could, if contested, appropriately be determined before a jury was empanelled ([16]).

• Court of Appeal (Criminal Division) — granted permission to appeal and dismissed K’s appeal against the refusal to stay the prosecution as an abuse of process.
• Crown Court at Leeds — His Honour Judge Stewart QC rejected the abuse-of-process submission at a preparatory hearing and later refused leave to appeal.