R v Gul

The definition of terrorism in section 1 of the Terrorism Act 2000 is deliberately broad. It is capable of covering military attacks by non-state armed groups against state or inter-governmental armed forces during a non-international armed conflict.

No established rule of international law excludes such attacks from terrorism or requires the statutory definition to be read down. A statutory requirement for prosecutorial consent does not determine the meaning of a criminal offence. Any conflict between the broad definition and an international obligation should ordinarily be addressed when applying the definition to the particular provision concerned, rather than by narrowing it throughout the legislation.

The appellant uploaded videos showing attacks by Al-Qaeda, the Taliban and other groups upon military and civilian targets. The accompanying commentaries praised the attackers and encouraged emulation. Following a retrial at the Central Criminal Court, he was convicted of five offences of disseminating terrorist publications contrary to section 2 of the Terrorism Act 2006.

The Court of Appeal dismissed his conviction and sentence appeals in [2012] EWCA Crim 280, [2012] 1 WLR 3432. It certified whether section 1 of the Terrorism Act 2000 could encompass military attacks by a non-state armed group against state or inter-governmental armed forces in a non-international armed conflict.

The appellant contended that domestic and international law required the statutory definition to exclude such attacks.

1. The appeal was dismissed unanimously. The certified question was answered affirmatively. Section 1 of the Terrorism Act 2000 is capable of including military attacks by non-state armed groups against state or inter-governmental armed forces during a non-international armed conflict.

2. Lord Neuberger and Lord Judge, giving the judgment with which every other member of the court agreed, held that terrorism under section 1 has three components. There must be qualifying action, including serious violence, serious property damage or specified danger to life, health or safety. Its use or threat must be designed to influence a government or international governmental organisation, or intimidate the public. It must also advance a political, religious, racial or ideological cause.

3. The statutory language deliberately has a very wide natural meaning. It may encompass violent conduct abroad which attracts public sympathy, conduct in resistance to an oppressive government, and conduct which international humanitarian law may regard as lawful hostilities. The court could not imply an armed-conflict exclusion which Parliament had not enacted.

4. The consent requirement in section 117 could not be used to construe the definition broadly or to decide which activities were criminal. Prosecutorial discretion determines whether proceedings should be brought in the public interest; it does not define the offence. Reliance upon that discretion to mitigate an excessively broad offence risks uncertainty and the delegation of a legislative function.

5. International law did not require a narrower construction. There was no internationally agreed definition of terrorism and no sufficiently certain norm excluding insurgent attacks upon armed forces during non-international armed conflicts. International instruments and national legislation revealed materially different approaches. Insurgents in such conflicts also lacked combatant immunity under international humanitarian law.

6. The fact that parts of the 2000 and 2006 Acts implemented treaty obligations did not limit Parliament to the minimum required by those treaties. If application of the broad definition caused a particular provision to conflict with an international obligation, the appropriate course could be to read down the definition for that provision. It did not follow that section 1 must be narrowed throughout both Acts.

7. The court nevertheless expressed serious concern about the definition's breadth and the extensive prosecutorial, police and immigration discretions attached to it. Legislative reconsideration would be welcome if compatible with public protection. Those wider concerns did not alter the interpretation or outcome.

1. United Kingdom Supreme Court: Dismissed the appeal in [2013] UKSC 64 and answered the certified question affirmatively.
2. Court of Appeal (Criminal Division): In [2012] EWCA Crim 280, [2012] 1 WLR 3432, dismissed the conviction and sentence appeals and held that the statutory definition included the relevant attacks.
3. Central Criminal Court: Following a retrial before HH Judge Paget QC and a jury, the appellant was convicted on five counts of disseminating terrorist publications and sentenced to five years’ imprisonment.