R v G; R v J

This appeal concerned the proper interpretation of section 58 of the Terrorism Act 2000 and its relationship with section 57. The court held that s58 targets the nature of information (information of a kind likely to be useful to a person committing or preparing an act of terrorism) and, for possession under s58(1)(b), the Crown must prove knowledge of the record and awareness of the nature of its contents. Section 58 focuses on the intrinsic character of the material rather than the possessor's purpose, and extrinsic evidence is limited to explaining the true nature or concealed character of the material. The defence in s58(3) is an objectively assessed defence of a "reasonable excuse" and is not to be conflated with the purpose‑based defence in s57(2). Section 118 shifts evidential burdens but does not require the Crown to prove beyond reasonable doubt the accused's actual (terrorist) purpose once it has established the elements of s58(1).

Facts and procedure:

• These linked appeals arose from Crown Court prosecutions of two defendants: G was charged with collecting/recording information likely to be useful to terrorists (s58) and with preparing acts of terrorism; J faced charges under s57 (possession of articles in circumstances giving rise to reasonable suspicion of terrorist purpose) and under s58 (possession of records/documents). Both matters reached the Court of Appeal and were certified for points of law of general public importance. The Crown obtained leave to appeal to the House of Lords.

Issues framed by the court:

• What are the ingredients of the offence in s58(1)?
• What is the scope of the defence in s58(3)?
• What is the relationship between s57 and s58 (and the operation of s118)?

Court's reasoning:

• The court explained that s58 criminalises collecting, recording or possessing information that, by its nature, is likely to provide practical assistance to a person committing or preparing an act of terrorism. Possession under s58(1)(b) requires proof that the defendant had control of the record, knew he had it and knew the nature of the information it contained.
• Extrinsic evidence is permissible only to explain technical items or to reveal a concealed true nature (eg codes), not to transform innocuous everyday documents into material of the forbidden kind.
• S57 and s58 serve different aims: s57 focuses on circumstances of possession and gives rise to a purpose‑based defence under s57(2); s58 focuses on the nature of information and provides an objectively assessed "reasonable excuse" defence under s58(3). The court rejected the Court of Appeal's construction that s58(3) simply mirrored s57(2).
• Section 118 shifts evidential burdens: if a defendant adduces evidence raising a s58(3) issue, the prosecution must disprove that defence beyond reasonable doubt, but that does not change the elements the prosecution must prove to establish the substantive offence under s58(1).
• Applying these principles, the House concluded that G had no reasonable excuse for collecting the material and restored the judge's ruling that he had no defence; in J's case the judge's ruling that the Crown would have to prove a terrorist purpose as part of s58 was reversed.

Appeals allowed. The House held that s58(1) criminalises the collection, recording or possession of information which is, by its nature, likely to be useful to a person committing or preparing an act of terrorism; for possession (s58(1)(b)) the Crown must prove control, knowledge of possession and awareness of the nature of the information. The s58(3) defence is an objective defence of a "reasonable excuse" and is not equivalent to the purpose‑based defence in s57(2). Section 118 affects evidential burdens but does not add elements to the substantive offence the Crown must prove under s58(1). The House restored Pitchford J's ruling in R v G and reversed Judge Chapman in R v J.

Appeals from the Court of Appeal (Criminal Division): see [2008] EWCA Crim 922 and [2008] EWCA Crim 1161. Relevant Court of Appeal authorities considered included R v K [2008] 2 WLR 1026 and R v Zafar [2008] 2 WLR 1013; earlier relevant appellate decisions include R v Rowe [2007] QB 975 and R v M [2007] EWCA Crim 298. The Appellate Committee granted the Crown leave to appeal and gave the judgment of the House on 4 March 2009.