R v Zaheed Hossen

For an offence of disseminating a terrorist publication, the statutory defence is not confined to journalists, academics, teachers or other professional disseminators. Under the Terrorism Act 2006, section 2(9) and (10), it is available where intention under section 2(1)(a) has not been proved and the defendant proves both that the relevant matter neither expressed their views nor had their endorsement, and that this was objectively clear in all the circumstances. “To show” imposes a legal, persuasive burden discharged on the balance of probabilities. The defence should not be left to the jury without sufficient evidence on both limbs. Where a jury’s reasoning is unknown, the sentencing judge must determine the factual basis from the evidence rather than presume a favourable basis.

The appellant was convicted at the Crown Court at Kingston of five offences of disseminating terrorist publications, contrary to section 2(1) of the Terrorism Act 2006, and was sentenced to seven years’ imprisonment. He accepted that he had disseminated terrorist publications but said that he had done so for discussion and did not endorse their contents. During jury deliberations, he raised for the first time the statutory defence in section 2(9) and (10). The trial judge declined to leave the defence to the jury, considering it restricted to persons such as journalists or academics and unsupported by evidence. The appellant appealed against conviction and sentence. The central issues were the scope of the defence, the nature of its second limb and burden of proof, whether sufficient evidence existed to leave it to the jury, and whether the jury note affected the factual basis for sentence.

The appeal against conviction was refused and the appeal against sentence was dismissed.

1. Availability and statutory scope. The wording of section 2(9) and (10) of the Terrorism Act 2006 imposed no occupational or personal-status restriction. The defence was therefore available irrespective of whether the defendant was a journalist, academic, teacher or other professional disseminator. The Explanatory Notes and Parliamentary material showed concern to protect legitimate dissemination, but did not justify reading a limitation into the statutory language.
2. The two limbs. The defence was cumulative. The defendant had to show both that the relevant matter neither expressed their views nor had their endorsement, and that it was objectively clear, in all the circumstances of the conduct, that this was so. The second limb was fact-specific and for the jury. An assertion by the defendant might address the first limb, depending on the other evidence, but would often be insufficient for the objective second limb. Professional dissemination might assist the defence but was not a legal prerequisite.
3. Burden of proof. Although the issue was not necessary to determine the appeal, the court concluded that the words “to show” meant “to prove” and imposed a legal or persuasive burden on the defendant in respect of both limbs, discharged on the balance of probabilities. The court applied the reasoning in Roger Sliney v London Borough of Havering [2002] EWCA Crim 2558 and considered that this burden was compatible with Article 6(2), applying Salabiaku v France [1988] 13 EHRR 379.
4. Application to conviction. The defence was raised only during jury deliberations, was not foreshadowed in the defence statement or submissions, and lacked sufficient evidence addressing the objective limb. The trial judge was therefore right to refuse the direction, although the judge’s reason that the defence was confined to a particular occupational class was wrong. The convictions were not arguably unsafe.
5. Sentence. A jury note did not establish that the jury had rejected intention. Where the factual basis of a verdict was unknown, the sentencing judge had to decide it from the evidence and was not required to give the defendant the benefit of the doubt: R v Cloud [2001] EWCA Crim 510. The judge was entitled to find that the appellant intended to encourage terrorism from the messages, mindset material and other evidence. The categorisation as 2A was correct, the extension period under the Sentencing Act 2020 was required, and the sentence was neither wrong in principle nor manifestly excessive.

1. Court of Appeal (Criminal Division) — The appeals against conviction and sentence were dismissed in [2026] EWCA Crim 1065 .
2. Crown Court at Kingston — HHJ Lodder KC convicted the appellant of five offences and, on 10 December 2024, imposed a total sentence of seven years’ imprisonment in [T202300027].