Ali, R v

Section 2 of the Terrorism Act 2006 lawfully and proportionately criminalises the intentional or reckless dissemination of material which directly or indirectly encourages acts of terrorism. It does not criminalise the holding, expression or communication of religious or political views, including passive support for a terrorist organisation.

Whether jury directions sufficiently protect Article 10 rights depends on the case and the directions as a whole. Directions need not adopt the wording used in R v Faraz [2012] EWCA Crim 2820. They were adequate where they clearly confined the alleged encouragement to unlawful fighting for a proscribed organisation and excluded conviction for mere belief or support.

The appellant was convicted at Birmingham Crown Court of preparing terrorist acts, disseminating three terrorist publications, and two malicious-communications offences. He received an extended determinate sentence of 13 years for the preparation offence, together with consecutive detention totalling 12 months for the malicious-communications offences.

His appeal against conviction was confined to the three dissemination counts. He contended that the jury should have received a series of Article 10-compatible readings of section 2 of the Terrorism Act 2006, based on R v Faraz [2012] EWCA Crim 2820, and that the judge wrongly assessed the potential audience for the videos. His sentence application challenged dangerousness, the applicable level in R v Kahar and Others [2016] EWCA Crim 568, youth and totality.

1. The appeal against conviction was dismissed and the sentence application was refused. Section 2 targets intentional or reckless dissemination which encourages the commission, preparation or instigation of terrorist acts. It does not prohibit offensive opinions, support for a terrorist cause, or their communication without more. The restriction on expression therefore pursued a legitimate objective and was lawful, proportionate and necessary under Article 10(2).

2. The trial judge’s directions adequately protected Article 10. Taken as a whole, they made clear that the prosecution alleged calls to take up arms and unlawfully fight for IS, a proscribed organisation. They also made clear that agreement with IS’s aims or views, and passive support, were insufficient. The jury could not have convicted merely because the videos expressed religious or political views.

3. R v Faraz [2012] EWCA Crim 2820 did not prescribe mandatory wording for every section 2 case. Its outcome concerned the adequacy of directions in its own different setting. The suggested substitutions for “likely” and “indirect encouragement” were unnecessary and less clear; no further explanation of “some or all” or “one or more” was required on the facts; and “with a view to” did not arise because the prosecution relied on section 2(2)(d), not section 2(2)(f).

4. The potential audience could extend beyond the two immediate recipients. Under section 2(3), the jury had to consider persons to whom the videos might become available as a consequence of dissemination. The appellant had no control over onward distribution.

5. The judge was entitled to find the appellant dangerous. The conduct fell squarely within Level 5 of R v Kahar and Others [2016] EWCA Crim 568, given the preparations and attempts to travel to Syria to fight, with proper additional regard to later domestic activity. The concurrent three-year terms on the dissemination counts did not undermine the eight-year custodial term.

• Court of Appeal (Criminal Division): dismissed the appeal against convictions for dissemination of terrorist publications and refused the sentence application: [2018] EWCA Crim 547.
• Birmingham Crown Court: convicted the appellant on 15 December 2016 of six offences and imposed an extended determinate sentence for the section 5 offence, with further sentences for the other counts.