Faraz v R.

Under section 2 of the Terrorism Act 2006, a publication’s likely effect may be assessed by reference to the range of its readership. Evidence that convicted terrorists possessed the publication may show, at most, that the readership included persons prepared to commit terrorist acts. It does not establish that the publication encouraged them to offend.

Such evidence carries a serious risk of conviction by association. If admitted, its purpose and limits must be strictly confined and the jury must receive a clear warning against speculative and prejudicial use. Properly directed application of section 2 does not infringe Article 10 merely because a publication expresses political or religious views.

The appellant was convicted at Kingston-upon-Thames Crown Court of disseminating terrorist publications contrary to section 2 of the Terrorism Act 2006. The prosecution relied on books and DVDs sold through an Islamic bookshop and website.

At trial, the judge admitted evidence that persons convicted of terrorist offences had possessed some of the indicted publications. The evidence was admitted as potentially explanatory and probative of whether the publications were terrorist publications. The appellant appealed against convictions on seven dissemination counts, contending that this evidence was unfairly admitted and inadequately controlled. He also sought permission to argue that the judge’s directions on count 1 insufficiently protected his Article 10 freedom of expression.

1. Appeal allowed on ground 1. The convictions on counts 1, 2 and 4 to 8 were unsafe and were quashed. The evidence that other terrorist offenders possessed publications distributed by the appellant was admitted and left to the jury without the necessary limiting direction.

2. Section 2(3)(a) of the Terrorism Act 2006 required the jury to assess how some persons to whom a publication might become available were likely to understand it. The composition of the likely readership could therefore be relevant. A readership could include persons already sympathetic to militant Islam, who might interpret a text differently from other readers.

3. That inquiry was distinct from asking whether a reader had in fact been encouraged to commit a terrorist act. Sections 2(7) and 2(8) did not make direct evidence of actual encouragement inadmissible; they made proof of actual encouragement unnecessary. But possession of the publications by terrorist offenders did not fairly permit an inference that those publications had encouraged their offending. The evidence was relevant, if at all, only for the very narrow purpose of showing that such persons formed part of the readership.

4. The prosecution’s reliance on the fact that material linked to the bookshop appeared in 26 per cent of terrorist investigations invited the jury to elide those distinct questions. The statistic had virtually no probative value without comparable evidence about possession by persons without terrorist intentions. The evidence also created a powerful risk that the jury would condemn publications by association with terrorists. If it were admitted, its terms had to be confined to uncontentious matters and accompanied by a firm warning about its limitations. The judge’s reference to section 2(8) did not provide that protection.

5. Permission refused on ground 2. The judge’s directions required a probable understanding by a significant number of readers that the publication encouraged unlawful terrorist offences, directly or by necessary implication, within a reasonable time; and intention or subjective recklessness by the appellant. Those requirements adequately distinguished protected political or religious expression from encouragement of unlawful terrorism. Article 10 of the European Convention on Human Rights did not create an exemption for a publication merely because it expressed political or religious views.

• Court of Appeal (Criminal Division) — allowed the appeal against the convictions on counts 1, 2 and 4 to 8, holding them unsafe, and quashed those convictions: [2012] EWCA Crim 2820.
• Crown Court at Kingston-upon-Thames — the appellant was convicted of dissemination offences under section 2 of the Terrorism Act 2006 and sentenced to a total of three years’ imprisonment.