R v G (Respondent) (on appeal from the Court of Appeal Criminal Division) R v J (Respondent) (on appeal from the Court of Appeal Criminal Division)

An offence under section 58(1) of the Terrorism Act 2000 concerns information which, by its nature, is likely to provide practical assistance to a person committing or preparing terrorism. The prosecution must prove the defendant's control of the record, knowledge of possessing it and awareness of the kind of information it contains. It need not prove a terrorist purpose.

A reasonable excuse under section 58(3) is objectively assessed in all the circumstances. Merely proving a non-terrorist purpose does not establish the defence. Once sufficient evidence raises the defence, section 118 requires the prosecution to disprove the particular excuse beyond reasonable doubt. Unless no reasonable jury could accept the excuse as reasonable, its assessment is for the jury.

These conjoined Crown appeals concerned defendants awaiting trial for offences under section 58 of the Terrorism Act 2000. G had collected bomb-making and related material while imprisoned. He said that, as a consequence of paranoid schizophrenia, he intended to provoke prison officers rather than assist terrorism. J possessed digitally stored training material and a video of police headquarters, for which he advanced several non-terrorist explanations.

Following R v K, the Court of Appeal held in G's case, [2008] EWCA Crim 922, and J's case, [2008] EWCA Crim 1161, that possession for a purpose other than assisting terrorism amounted to a reasonable excuse. The certified questions concerned the ingredients of section 58(1), the scope of section 58(3), and the relationship between sections 57 and 58.

1. Both Crown appeals were allowed. Lord Rodger prepared the considered opinion of the Appellate Committee. The ruling that G had no reasonable excuse was restored. In J's case, the Court of Appeal's order and the trial judge's ruling were reversed.

2. Under section 58(1) of the Terrorism Act 2000, the information must, by its nature, be likely to provide practical assistance to a person committing or preparing an act of terrorism. Ordinary information does not become subject to section 58 merely because extrinsic evidence shows that it was intended for terrorist use. Extrinsic evidence may explain technical, coded or concealed information. Training manuals, targeting information and electronic keys giving access to such material may fall within the provision.

3. For possession under section 58(1)(b), the Crown must prove beyond reasonable doubt that the defendant controlled the record, knew that it was possessed and knew the kind of information it contained. Complete knowledge of every detail is unnecessary. Deliberate failure to inquire does not enable a defendant to claim ignorance. The offence does not require proof that the defendant had a terrorist purpose.

4. Section 57 differs from section 58. Section 57 concerns possession of any article in circumstances creating a reasonable suspicion of a terrorism-connected purpose. Section 58 focuses upon the inherent nature of information collected, recorded or possessed. A document or record may fall within both provisions.

5. Sections 58(3) and 118 operate only after the Crown has proved the ingredients of section 58(1). Once evidence sufficient to raise a reasonable excuse is adduced, the Crown must disprove that particular excuse beyond reasonable doubt. It need not additionally prove that the defendant acted for a terrorist purpose. The contrary approach in R v Zafar, if its language bore that meaning, was not to be followed.

6. The interpretation of reasonable excuse in R v K was wrong. A non-terrorist purpose is neutral and does not automatically constitute a reasonable excuse. The excuse must be objectively reasonable in the circumstances. Unless no reasonable jury could accept it, the question is for the jury. Relevant considerations may include the defendant's age, background, associates, way of life, the circumstances of acquiring the information and the duration of possession.

7. G's desire to provoke prison officers could not constitute a reasonable excuse. His schizophrenia did not make an otherwise unreasonable excuse reasonable, although it remained relevant to disposal. The ruling of Pitchford J was restored. The corresponding legal ruling in J's case was reversed.

1. House of Lords: Allowed both Crown appeals. It restored Pitchford J's ruling in G's case and reversed both the Court of Appeal's order and Judge Chapman's ruling in J's case.
2. Court of Appeal (G), [2008] EWCA Crim 922: Allowed G's appeal because it considered itself bound by R v K to treat his non-terrorist purpose as a reasonable excuse.
3. Court of Appeal (J), [2008] EWCA Crim 1161: Dismissed the Crown's appeal against Judge Chapman's ruling that, once a reasonable excuse was raised, the prosecution had to prove possession for the purpose of assisting terrorism.
4. Crown Court (G): Pitchford J ruled at a preparatory hearing that G's proposed explanation did not constitute a reasonable excuse under section 58(3) of the Terrorism Act 2000.
5. Crown Court (J): Judge Chapman permitted J to vacate guilty pleas and ruled that the prosecution had to prove a purpose of assisting terrorism if a reasonable excuse was raised.