Dunleavy, R. v (Rev 2)

Expert evidence must be relevant, based on identified facts, and directed to matters outside ordinary judicial knowledge. A general account of a condition, without a sufficiently particularised link to the defendant and the issues, does not justify admitting the opinion or holding a voir dire to supplement the report.

Under Terrorism Act 2000, a reasonable excuse is objective. Possession or distribution of terrorist-useful material for a purpose that includes supplying persons known to hold terrorist beliefs cannot be reasonable. A mental condition cannot make such a purpose reasonable, although it may be relevant where an excuse is properly left to the jury.

For preparation of terrorist acts under Terrorism Act 2006, jurors must unanimously find the statutory ingredients, but need not agree whether the intended terrorist act was to be committed by the defendant or assisted by him.

Paul Dunleavy was charged with preparing terrorist acts contrary to section 5(1) of the Terrorism Act 2006 and with nine offences of possessing documents likely to be useful to a terrorist contrary to section 58 of the Terrorism Act 2000.

At the first trial, Judge Inman QC ruled that the proposed psychological report was inadmissible and that no reasonable jury could find a reasonable excuse for the document-possession counts. Dunleavy then pleaded guilty to those counts. The jury was discharged on the preparation count and, at a retrial before Judge Farrer QC, Dunleavy was convicted of that count.

He renewed his applications for leave to appeal the document convictions and appealed the preparation conviction. The issues included the admissibility and procedural handling of expert evidence, the reasonable-excuse defence, and whether the jury required unanimity on the alternative forms of terrorist intent.

Applications for leave to appeal refused. The conviction for preparing terrorist acts and the convictions for possession of terrorist-useful documents were safe.

1. The court applied Part 19 of the Criminal Practice Directions. Expert opinion must be relevant, needed to assist on a matter outside ordinary knowledge, and given by a competent witness. The proposed report did not explain, by reference to this applicant, why autism supported an inference of boastfulness rather than terrorist intent, obsessive conduct concerning guns, an inability to understand others’ intentions, or a relevant presentation when giving evidence. It was a general account which did not provide the necessary factual basis for its conclusions. Judge Inman was entitled to reject it and not to permit a voir dire for the expert to add material absent from the report. Judge Farrer’s different ruling on different and fuller reports did not undermine the earlier ruling.

2. The reasonable-excuse defence in section 58(3) of the Terrorism Act 2000 is objective. Following R v G; R v J [2009] UKHL 13, the issue is ordinarily for the jury unless no reasonable jury could regard the excuse as reasonable. Here, no reasonable jury could find a reasonable excuse where possession and distribution of firearms material was, even in part, for sharing with people known to support terrorist ideology and for possible use in a future race war. An asserted primary innocent interest did not sever that tainted mixed purpose. Autism could not make an otherwise unreasonable purpose reasonable, though a condition may be relevant to whether a jury accepts an excuse in a case properly left to it. The later safe conviction on the section 5 count was independently conclusive against a reasonable excuse for the related possession counts.

3. Section 5 of the Terrorism Act 2006 required unanimous proof that the applicant intended an act of terrorism and engaged in preparation for that intention. The alternatives that he intended personally to commit the act or to assist another were mechanisms of the single offence, not separate ingredients requiring a unanimous choice between them. The same defence applied to both alternatives. There was also no realistic basis for requiring unanimity as to each similar communication relied upon as preparatory conduct.

The court therefore refused both applications, with the representation order extended to cover the applications concerning counts 2 to 10.

• Court of Appeal (Criminal Division) — The applications concerning counts 2 to 10 and the appeal concerning count 1 were refused: [2021] EWCA Crim 39.
• Crown Court at Birmingham — Judge Inman QC ruled that the reasonable-excuse defence was unavailable on the evidence and excluded the original psychological report; the applicant pleaded guilty to counts 2 to 10. After the jury was discharged on count 1, Judge Farrer QC retried and convicted the applicant on that count.