AY, R. v

Under section 58(3) of the Terrorism Act 2000, a defendant may rely on the purpose for which terrorist information was possessed as part of an asserted reasonable excuse. The absence of purpose as an element of the section 58(1) offence does not exclude it from the statutory defence.

The defence is not confined to accidental possession, intended delivery to the police, or authorised use. The dangerous nature of the information and any proposed use are relevant to reasonableness, but do not create a categorical bar. A judge may withdraw the defence only where no jury could reasonably regard the asserted excuse as reasonable.

The Crown brought an interlocutory appeal under section 35 of the Criminal Procedure and Investigations Act 1996 from a preparatory ruling by Mr Justice Mackay at the Central Criminal Court.

AY faced a retrial on four counts of possessing documents or records likely to be useful for terrorism, contrary to section 58 of the Terrorism Act 2000. The jury had not reached verdicts on those counts at the first trial. It was accepted that the documents, including material about explosives and suicide devices, satisfied the ingredients of section 58(1).

AY proposed to rely on reasonable excuse under section 58(3). He said that he had obtained the material for possible use by Somali Muslims in lawful self-defence. The central issue was whether that proposed purpose was capable in law of amounting to a reasonable excuse.

1. Appeal dismissed. The trial judge was correct not to rule that the proposed defence was incapable in law of constituting a reasonable excuse under section 58(3) of the Terrorism Act 2000.
2. Section 58(1) creates an objective offence of knowing possession of information likely to be of practical use to a person committing or preparing terrorism. It does not require the Crown to prove a terrorist purpose. That did not prevent purpose from being relevant to the distinct statutory defence in section 58(3). A person advancing reasonable excuse necessarily explains why the material was possessed, which will commonly include the intended purpose.
3. The reasoning in R v G & J [2009] UKHL 13 supported that conclusion. The Crown could defeat the defence by disproving the explanation, or by persuading the jury that the explanation, even if true, was not objectively reasonable. It did not have to prove a terrorist intention.
4. The court rejected the proposed distinction between possession for use in the field and other possession. Neither the language of section 58(3) nor R v G & J justified confining reasonable excuse to accidental possession or possession for surrender to the authorities. Official authorisation, and the danger of the information, may be highly relevant facts for the jury, but they are not unstated statutory conditions.
5. Reasonable excuse is ordinarily a jury question on the particular facts. The judge may refuse to leave it only if no jury could reasonably find the asserted excuse reasonable. The judge must not substitute a personal assessment of the defence's prospects: see also R v Nicholson [2006] EWCA Crim 1518.
6. The court made no ruling on whether the evidence would ultimately show a solely defensive purpose. Conduct in civil conflict may involve both defensive and offensive activity. Further, if any defensive purpose had been abandoned before arrest, the relevant question would be whether continued possession on the arrest date nevertheless had a reasonable excuse.

• Court of Appeal (Criminal Division): The Crown's interlocutory appeal was dismissed. The court upheld the refusal to exclude the proposed section 58(3) defence.
• Central Criminal Court: At a preparatory hearing, Mr Justice Mackay declined to rule that the asserted purpose of enabling lawful defence of others could not amount to reasonable excuse. No citation for that ruling was stated in the judgment.