Iqbal v R

Section 2 of the Terrorism Act 2006 does not require reading down to exclude recklessness. The offence is compatible with Article 10 where recklessness is subjective: the defendant must know of a serious and obvious risk that a significant number of readers would understand the publication as encouraging terrorism.

A prosecutorial decision may potentially engage Convention rights. However, the Crown Court does not ordinarily review the merits of a decision to prosecute or require the prosecution to exhaust alternatives. A stay for abuse of process requires an evidential basis and is exceptional, particularly where the offences are lawful, there is no prosecutorial misconduct, and the defendant has no special status comparable to an exploited trafficking victim.

The applicant faced trial in the Crown Court at Woolwich for disseminating terrorist publications under section 2 of the Terrorism Act 2006 and possessing terrorist information under section 58 of the Terrorism Act 2000. The prosecution alleged that he posted material encouraging or glorifying terrorism through several Facebook accounts and possessed issues of an online magazine containing terrorist material.

The trial judge refused an application to stay the prosecution as an abuse of process. He also rejected the submission that section 2 had to be read down, for Article 10 purposes, so that recklessness could not found liability. The applicant sought permission to appeal both preparatory rulings. After the Court of Appeal refused permission, he pleaded guilty to both counts.

1. Permission to appeal was refused. Section 2 of the Terrorism Act 2006 is a proportionate restriction on the qualified right to freedom of expression. Terrorist acts engage the interests protected by Article 10(2), including national security, public safety, crime prevention and the rights of others.

2. The court followed R v Brown [2011] EWCA Crim 2751 and R v Faraz [2012] EWCA Crim 2820. Section 2 may impose liability where the defendant acts with intent or subjective recklessness. Subjective recklessness means knowledge of a serious and obvious risk that a significant number of readers would understand the disseminated terrorist material as encouraging the instigation, preparation or commission of terrorist offences. That mental element does not unlawfully encroach on Article 10. A reading under section 3 of the Human Rights Act 1998 could not remove recklessness from the statutory offence; that would require disregarding the statutory language. No declaration of incompatibility was sought.

3. The trial judge was wrong to say that Article 10 could not be engaged at the decision-to-prosecute stage. A decision by the CPS is an act of a public authority and may potentially engage Convention rights. The error did not affect the result, because the judge considered whether the prosecution was in fact disproportionate and correctly rejected that contention.

4. The court distinguished R v L and ors [2013] EWCA Crim 991. The exceptional abuse jurisdiction in trafficking cases protects a defendant whose culpability may be diminished or extinguished by exploitation and a subservient position. It did not require a Crown Court to conduct an inquisitorial review of an ordinary prosecution for known offences where there was no misconduct and no comparable special characteristic.

5. As approved in A v R [2012] EWCA Crim 434, prosecutorial guidance creates neither immunity nor a defence, and the court does not substitute its own view of the public interest for that of the CPS. Intervention against an independent prosecutor is highly exceptional and requires an evidential foundation. The existence of possible alternatives to prosecution did not establish disproportionality or abuse. On the facts, the applicant had continued to post the alleged material while participating in the Channel programme, and the abuse application was groundless.

• Court of Appeal (Criminal Division): In Iqbal v R [2014] EWCA Crim 2650, refused permission to appeal against two preparatory rulings.
• Crown Court at Woolwich: On 28 March 2014, rejected the application to stay the prosecution as an abuse of process. On 31 March 2014, rejected the proposed reading down of section 2 of the Terrorism Act 2006.