The appellant, Ahmed Raza Faraz, was convicted on 12 December 2011 of seven counts of disseminating a ‘terrorist publication’, contrary to section 2(1)(a) and (2) of the Terrorism Act 2006, by distribution; and four counts of possessing information likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58(1)(b) of the Terrorism Act 2000. The appellant was sentenced to three years’ imprisonment.
The appellant appealed against his convictions under 2(1)(a) and (2) of the Terrorism Act 2006 on the ground that the judge allowed the prosecution to admit in evidence ‘the possession by named terrorist offenders of material similar or identical to that allegedly disseminated by the appellant, for the purpose of considering whether the material comprised a ‘terrorist publication’ for the purposes of section 2 of the 2006 Act’. The appellant also appealed on the ground that the judge did not direct the jury on the constituent parts of the section 2 offence in terms which were compatible with Article 10 of the European Convention on Human Rights (ECHR). Article 10 provides that everyone has the right to free speech but that this right can is subject to qualifications ‘as are prescribed by law and are necessary in a democratic society.’
The indicted material
The appellant was the manager of the Maktabah Islamic bookshop in Birmingham. He sold books, articles, videos and DVDs in the shop and through a website. The prosecution’s case was that certain of this material supported ‘militant Islam’. The indicted material was described by the Court of Appeal as follows:
‘The centrepiece of Milestones – special edition (count 1) was the work of Sayyid Qutb, a leading member of the Muslim Brotherhood, who executed in Egypt in 1966 in consequence of his opposition to President Nasser and his suspected involvement in a plot to bring down his Government. The special edition was edited by the appellant in his pen name A. B. Al-Mehri. It contained a biography of the author… and nine appendices containing works by various authors. The book was offered for sale in the form in which it was indicted in or about April 2006… The special edition was alleged by the prosecution to be a polemic in favour of the Jihadist movement encouraging violence towards non-believers. Malcolm X, Bonus Disc (count 2) was a DVD containing a film about the life of the deceased Muslim leader. It included a number of trailers and other recordings of interviews with the families of men who had died ‘fighting’ US forces in Afghanistan and Israeli forces in the occupied Palestinian territory. It included footage of a suicide bomber driving to his death in Iraq. 21st Century Crusaders (count 4) was a DVD. It purported to be a documentary focused upon the suffering of Muslims around the world. It included an interview with a masked man who defended terrorist attacks by or on behalf of Al-Qaeda. The Lofty Mountain (count 5) included a text written by Abdullah Azzam justifying the expulsion of the Russian occupation of Afghanistan in the 1980s. The work included a biography of Azzam, accounts of the Battle of the Lion’s Den in 1987, in which Osama Bin Laden was a volunteer, the biography of a journalist who died while working as a medic in support of the fighters against US forces in Afghanistan in December 2001, and Azzam’s account of Bin Laden’s role in expelling the Russian army from Afghanistan. Join the Caravan (count 6) was a book founded upon a text by Sheikh Azzam. The translator’s foreward praised his work and writing. Defence of the Muslim Lands (count 7) was also founded upon a text by Sheikh Azzam. Its appendices included a discussion upon the justification for suicide operations in Chechnya. Finally, The Absent Obligation (count 8) was a book whose central text was written in the 1970s by Mohammed Abdus Faraj, an Egyptian Muslim, who was implicated in the death of President Anwar Sadat of Egypt and was executed. The text argued for the need for jihad in defence of the Islamic faith against a corrupt ruler.’
The appellant contended that the materials did not encourage acts of terrorism but instead offered buyers materials of a religious and political nature which were to foster discussion of the theory behind them. Read properly, the material did not encourage terrorism. The appellant did not give evidence to raise the statutory defence under section 2(9) that the publications did not represent his views (Though there is little logic in this being a defence. A person may sell material with the intention that it directly encourages another to commission an act of terrorism which in turn affects, for example, the price of oil or certain stock prices. That person’s purpose might to make some financial gain as a result of the shifting markets. He does not share the views expressed in the material, but why should he be less culpable?).
The statutory offence
Section 2 of the Terrorism Act 2006 provides:
2(1) A person commits an offence if he engages in conduct falling within sub-section (2) and, at the time he does so (a) he intends the effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; or (c) he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b).
2(2) For the purposes of this section a person engages in conduct falling within this sub-section if he (a) distributes or circulates a terrorist publication… or (e) has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e).
2(3) For the purposes of this section a publication is a terrorist publication, in relation to conduct falling within sub-section (2) if matter contained in it is likely (a) to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism…
At trial the prosecution applied for permission to adduce evidence that individuals convicted of terrorist offences possessed several of the publications indicted. The prosecution said that the material important explanatory evidence within the meaning of section 100(1)(a) and (2) of the Criminal Justice Act 2003 and was relevant to three matters: whether the items were terrorist publications; the appellant’s intent in distributing the publications; and whether the material was being disseminated by the appellant within the meaning of section 2(1). The judge agreed that it was important explanatory evidence and was relevant to whether the items were terrorist publications and permitted the prosecution to adduce by way of admissions the names of the offenders, a summary of the offences committed and the fact that they had possessed the relevant publications.
Grounds of appeal
Admission of the other cases
The appellant submitted at appeal that the other material did not provide an explanation which the jury needed to hear and nor was it probative of the question whether a publication was a ‘terrorist publication’. The appellant also submitted that section 2(8) of the TA 2006 expressly stated that ‘it is irrelevant… whether any person… is in fact encouraged or induced by that matter to commit, prepare, or instigate acts of terrorism’ and as such that ought to have determined the application to adduce the material. The question of the material’s capacity to encourage ‘was to be judged, on the facts, of the present case, solely upon an assessment of its contents in the context in which it was disseminated.’
Alternatively, the appellant argued, the question whether any individual was encouraged was not ‘a matter of substantial importance’ or that ‘the jury would find it impossible or difficult properly to understand other evidence in the case’ without it because of the terms of section 2(8).
The Court of Appeal held that the identity of the publications’ readership could be important evidence in assisting the jury decide whether the material constituted an encouragement to acts of terrorism and therefore was a ‘terrorist publication’. It was, however, concerned that there had been a risk that without a proper judicial direction the jury might not have appreciated that judging the likely effect of the material was a separate exercise to deciding that the readership was encouraged to commit terrorist offences. The court said:
‘In our judgment, the evidence was admissible, if at all, for the extremely limited purpose of demonstrating that among the readership of the Maktabah publications were people who were prepared to commit terrorist acts.’
However, earlier the court had observed ‘that there would be among Maktabah’s readership some who were more likely than others, particularly those who were already sympathetic to the objectives of militant Islam, to interpret any given text as encouragement.’ Even though the court recognised the manifest potential for evidence that the publications were owned by those convicted of terrorist offences to lead the jury to convict simply on that basis, this earlier observation surely lends weight to the defence’s argument that it ought not to be admitted with reference to section 2(8). The court was right to say that evidence that a person had indeed been encouraged by the publications to commit offences would be admissible. But that ought to have forced the conclusion that anything less than direct evidence would be too prejudicial to the appellant’s case and ought not to have been admitted. No direction of a judge would be sufficient to obviate the risk that a jury might convict on the possession of the publications alone.
The appellant nonetheless succeeded with this ground of appeal as the court found the judge failed to give the jury suitable directions to ‘[head] off the risk of unfair prejudice’.
Article 10 ECHR
In respect of count 1 concerning the publication Milestones the appellant submitted that section 2 of the TA 2000 offends Article 10 since the offence created was disproportionate. The judge ought to have read down the requirements of section 2 as section 3 of the Human Rights Act 1998 allows and thus comply with the Article 10 obligations. The appellant set out four submissions:
(1) The alternative requirement for recklessness in section 2(1)(c) should not have applied if the jury was to conclude that the subject matter of the publication was ‘political or religious ideas’.
(2) The requirement of a likelihood that the publication would be understood as encouragement in section 2(3)(a) should not apply to the extent that the jury concluded ‘that the publication was a legitimate expression of a political or religious view’.
(3) The jury should have been directed that the encouragement required by section 2(3)(a) was for the ‘imminent’ commission, preparation or instigation of acts of terrorism.
(4) The judge should have left to the jury an Art 10 defence, namely, the jury should be slow to convict in respect of a publication which amounted to a political or religious argument even if it would be understood to encourage terrorism.
The appellant argued that these additional restrictions were needed so as not to offend Article 10. The Court of Appeal considered the judge’s directions and concluded that the jury could only convict if they were sure that: the appellant distributed the publication; at the time the publication would be understood by a significant number of its readers, directly or by necessary implication, to be encouraging the instigation, preparation or commission of a terrorist offence within a reasonable timescale; and at the time the appellant intended that the publication should be so understood or, knowing of a serious and obvious risk that it would be so understood, he distributed it.
Again, given the court’s earlier observation that some may interpret ‘any given text as encouragement’ the mere act of selling any book might be categorised as ‘reckless’ on this account. This is further compounded by the court’s view that ‘[in] judging the capacity of the publication to encourage unlawful acts of terrorism the question whether the publication was a correct interpretation of the teaching of Islam was of marginal relevance.’ Applying this opinion, it is not difficult to imagine the selling of the Quran itself as potentially being a contravention of section 2. A bookseller may understand that there may be some who would interpret that text as encouraging an act as defined by section 1(1) of the Terrorism Act 2000. He may also know that the risk of someone so understanding the book is obvious. And if he then sells the book he is guilty of an offence. The defence under section 2(9) may not be available because he may not wish to state that the contents do not represent his views. The clear problem is the breadth of the offence created by section 2. Defining the material by its readership and not on its content alone is wrong and could lead to capricious results. The implications for free speech and the free exchange of ideas should be obvious. Historical works, religious allegories, autobiographies of certain figures: all are susceptible to perverse interpretations. But more troublingly, prosecutions of this sort are entirely dependant on the direction political winds are blowing at any given time.
This post focuses on the Court of Appeal decision rather than an in-depth examination of the legislation itself. The court below did carry out that exercise and the appellant put before the court much commentary and authority on the principles of Article 10. Milestones is currently available to buy on Amazon and several of the other indicted publications can be found online. Qutb wrote Milestones in 1964, long before the emergence of Al Qaeda and transnational terrorism as we know it today. This represents a further difficulty in defining literature by reference to external factors with no inquiry into the mind of the author. Although the appellant succeeded, cases of this sort will return to the courts. When they do, it is likely that the assessment of the compendious commentary and authorities on freedom of speech that the Court of Appeal decided did not concern it in this case will be have to be addressed.
Russell Fraser is a pupil barrister at 2 Dr Johnson’s Buildings. He previously worked as a paralegal on Special Immigration Appeals Commission and Terrorism Prevention and Investigation Measures cases. He writes in a personal capacity and tweets at @russell_fraser