G v R

A defendant charged under section 58 of the Terrorism Act 2000 may have a reasonable excuse where the information was collected or possessed for a purpose other than assisting the commission or preparation of terrorism. That remains so even if the other purpose may itself infringe criminal or civil law.

Where there is evidence capable of raising that defence, section 118 requires the issue to be left for determination in accordance with the statutory burden. A court is bound by a recent decision of the Court of Appeal which establishes that construction unless it is shown to be obiter or per incuriam.

G awaited trial on charges of preparation of terrorist acts and collecting information likely to be useful to a terrorist. Psychiatric evidence indicated that he had paranoid schizophrenia and had generated the material to provoke prison staff because of psychotic experiences.

At a preparatory hearing, Pitchford J held that this could not amount to a reasonable excuse under section 58(3) of the Terrorism Act 2000. Shortly afterwards, the Court of Appeal decided R v K [2008] EWCA Crim 185. The Crown accepted that K would provide a potential defence, but contended that it was not binding, was obiter, and was per incuriam.

The central issue was whether G's non-terrorist purpose was capable in law of amounting to a reasonable excuse.

1. Appeal allowed. The court held that it was bound by R v K [2008] EWCA Crim 185. Under that decision, the reasonable-excuse defence in section 58(3) of the Terrorism Act 2000 is capable of being satisfied by an explanation that information was collected or possessed for a purpose other than assisting the commission or preparation of an act of terrorism. The other purpose need not be lawful or normatively innocent.

2. The relevant reasoning in K was not merely obiter. It was directly relevant to the issue there decided, namely whether section 58 was impermissibly uncertain. Nor had the Crown shown that K was per incuriam. The court in K had considered the relevant statutory context, including the earlier analysis in R v Rowe [2007] EWCA Crim 635, and earlier reasonable-excuse authorities did not establish the restrictive rule advanced by the Crown.

3. Accordingly, G's explanation that he collected the material to provoke prison officers was capable of amounting to a reasonable excuse. Section 118 of the Terrorism Act 2000 applied, and it was for the jury to decide whether the defence was established.

4. The court did not decide the separate causation issue arising from G's mental illness. It nevertheless observed, without deciding the point, that causation may remain material even where mental illness does not amount to insanity or compulsion. The reasoning in R v Tabnak [2007] EWCA Crim 380 was confined to the special statutory context considered there.

• Court of Appeal (Criminal Division) — allowed G's appeal: [2008] EWCA Crim 922.
• Crown Court at Woolwich — at a preparatory hearing, Pitchford J ruled that G's mental illness was not capable of constituting a reasonable excuse under section 58(3) of the Terrorism Act 2000.