Da Costa, R. v

For attendance at terrorist training, Terrorism Act 2006 section 8 does not import the provider’s knowledge requirement from section 6(1)(b). The offence is committed where training of the statutory character is in fact provided for terrorist purposes and the attender knows, believes, or could not reasonably fail to understand that purpose. The attender need not intend personally to use the training for terrorism.

Section 6(3)(b) is broad enough to include fitness training capable of equipping a person for terrorism. It is nevertheless sufficiently certain because a provider is liable only if knowing that a recipient intends terrorist use. A jury direction must be read as a whole and in the context of the issues raised at trial.

Following a five-month jury trial, Hamid, Da Costa, Ahmed and Al-Figari were convicted of terrorist offences arising from weekly meetings and training trips. The convictions challenged were for providing terrorist training under section 6 of the Terrorism Act 2006 and attending such training under section 8. Hamid and Atilla also sought leave to appeal their sentences for soliciting murder.

The applicants contended that the jury had been insufficiently directed on the mental element of section 6, that section 8 imported the provider’s mental element in section 6(1)(b), and that the breadth of section 6(3)(b) rendered it uncertain and incompatible with article 7 of the Convention.

1. Applications for leave to appeal against conviction and sentence were refused.

2. Section 6(1)(b) requires the provider of training to know that at least one recipient in fact intends to use the skills for terrorist purposes. The agreed written direction correctly conveyed that requirement. Although, in answering a separate question about whether training was objectively assessed, the judge referred to the provider’s intention, that answer was not a substitute for the written direction. Read as a whole and against the way the case had been fought, the summing-up created no arguable safety issue.

3. Section 8(1)(b) refers to the character of training described in section 6(1)(a), read with section 6(3). It does not incorporate the provider’s knowledge under section 6(1)(b). Section 8 therefore creates a distinct and less serious attendance offence. It requires that training is in fact provided for terrorist purposes and that the attender has the knowledge, belief, or unavoidable understanding required by section 8(2). It does not require that the attender intends personally to make terrorist use of the training. Section 6(2), by contrast, addresses receipt of training by a person with that intention.

4. Section 6(3)(b) is deliberately wide. It can include fitness training, especially when coupled with elementary militaristic training, where the training is capable of terrorist use. Its breadth was a matter for Parliament and did not make the offence uncertain. The knowledge requirement in section 6(1)(b) gave the provision a comprehensible and adequate boundary. R v Zafar [2008] EWCA Crim. 184, concerning section 57 of the Terrorism Act 2000, did not assist because that possession offence lacked the equivalent mental element.

5. The sentence challenges were also unarguable. Earlier seven-year sentences for solicitation to murder were not current benchmarks, because they pre-dated the sentencing changes in the Criminal Justice Act 2003. R v Barot [2007] EWCA Crim. 1119 applied to inchoate offences connected with murder, including solicitation. The judge’s assessment of an appropriate determinate term of about ten years after trial was consistent with the guidance provided by the Attorney General’s Reference.

• Court of Appeal (Criminal Division) — in [2009] EWCA Crim 482, refused leave to appeal against conviction and sentence.
• Trial court — after a five-month jury trial, convicted the relevant applicants of offences under sections 6 and 8 of the Terrorism Act 2006. Hamid and Atilla were sentenced for soliciting murder; the court below is not otherwise identified in the judgment.