R v Kashif Riaz & Anor

For offences involving the encouragement of terrorism or dissemination of a terrorist publication, the encouragement inquiry is objective. The material must be considered as a whole and in context, asking how a reasonable person would understand it. The defendant’s intention or recklessness remains a separate mental element, which may be inferred from surrounding circumstances.

The proportionality assessment under Articles 9 and 10 of the Convention is fact-sensitive and applies to children as well as adults. Section 2 of the Terrorism Act 2006 can be read compatibly with Convention rights under section 3 of the Human Rights Act 1998. A separate mindset direction is useful but not mandatory. Overlapping evidence does not itself amount to abuse of process.

Two 16-year-old defendants were convicted at Manchester Crown Court of encouraging terrorism and disseminating terrorist publications. Their cases concerned Instagram posts and links to YouTube videos. They relied on their asserted purpose of raising awareness of atrocities in Syria and challenged the sufficiency and use of the prosecution evidence.

They renewed applications for leave to appeal after refusal by a Single Judge. The appeals raised issues concerning no case to answer, the compatibility of the offences with Articles 6, 9 and 10 of the Convention, jury directions concerning religious and political beliefs, mindset evidence, the use of overlapping evidence, and the consistency of convictions with earlier acquittals.

1. Disposition. The renewed applications for leave to appeal were refused. The convictions were not arguably unsafe.
2. The trial judge was entitled to reject the no-case submissions. The Instagram posts could be considered as a whole and in context, and a properly directed jury could conclude that a reasonable person would understand them as indirect encouragement to engage in armed and violent activity. The videos could similarly be treated as terrorist publications because they glorified terrorist activity or a terrorist organisation. The applicants’ intention or recklessness could be inferred from the surrounding circumstances.
3. The court rejected the challenge under Articles 9 and 10 of the Convention. Parliament was entitled to strike the balance between individual rights and the State’s duties to protect people from terrorism. Section 2 of the Terrorism Act 2006 could be read and given effect compatibly with children’s Convention rights under section 3 of the Human Rights Act 1998. The proportionality exercise was case-specific and applied to children as well as adults. The statutory balance, together with appropriate directions, was sufficient.
4. There was no prescribed form of jury direction. Directions adequately protected the applicants’ rights where they made clear that the jury must not judge them simply for their religious or political beliefs and that they were entitled to hold and express those beliefs unless they contravened the criminal law. The judge was not bound to adopt every suggested formulation.
5. The same or overlapping evidence could be used to support different charges, including in successive trials for different purposes. That did not, without more, constitute an abuse of process. Whether injustice resulted depended on the facts. A discrete direction on mindset evidence might be useful, but was not required in every case. The need for such a direction depended on the issues and the use made of the evidence. The directions on mens rea, relevance, age, burden and standard of proof were sufficient.
6. The verdicts were not inconsistent with the earlier acquittals. The counts concerned different material, and conviction did not depend on proof that the applicants had formed a particular plan to travel to Syria. The jury were entitled to treat the evidence differently on each count.

• Court of Appeal (Criminal Division): On 15 December 2023, the renewed applications for leave to appeal were refused: [2023] EWCA Crim 1686.
• Single Judge: Applications for leave to appeal against conviction were refused.
• Crown Court at Manchester: The defendants were convicted on 15 July 2022 and received community sentences on 2 December 2022.