| Neutral Citation Number: [2007] EWCA
Crim 243 |
|
Case No: 2007/00579/B5 |
In The Supreme Court Of Judicature
Court Of Appeal (Criminal Division)
On Appeal From Woolwich Crown Court
The Hon Mr Justice Mackay
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Royal Courts of
Justice
Strand, London, WC2A 2LL |
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16/02/2007 |
Before:The President of the Queen's Bench
Division
Mr Justice Forbes, and Mr Justice Irwin
____________________
Between:
R
Appellant
- v
-
F
Respondent
Mr Geoffrey Robertson QC and Mr A Suterwalla
for the Appellant
Mr David Perry QC, Mr Nicholas Hilliard and Miss R Franton for the
Prosecution
Hearing dates : 5th and 6th February 2007
Crown Copyright ?
President of the Queen's Bench Division :
- This is an appeal with leave of Mackay J
from his decision on 25th January this year at
Woolwich Crown Court following a preparatory hearing held under
s29 of the Criminal Procedure and Investigations Act 1996. It
raises important questions about the construction of the
Terrorism Act 2000 (the 2000 Act). We have received helpful
written and oral submissions from Mr Geoffrey Robertson QC on
behalf of the appellant and Mr David Perry QC on behalf of the
Crown, and with their agreement, we admitted written submissions
prepared by Mr Keir Starmer QC on behalf of Justice.
The Facts
- A very brief summary will be
sufficient.
- The appellant
is a native of Libya. We are told that members of his family as
well as his friends were murdered in Libya by or on behalf of
the present regime. He fled to the United Kingdom in 2002,
where, in 2003 he was granted asylum. This decision demonstrated
that he had a well justified fear of persecution if he were
returned to his native country.
- In October 2005
his accommodation in England was raided. After the material
taken from it was analysed, on 27th March 2006 he was
arrested and charged with offences under the 2000 Act. The
indictment contains two counts. Each alleges a contravention of
s58 (1)(b) of the Act. The appellant is alleged to have been in
possession of a document or record containing information of a
kind "likely to be useful to a person committing or preparing an
act of terrorism". In view of some of the submissions by Mr
Robertson, it is perhaps worth emphasising that the documents in
question appear, if the Crown's case is right, to go very much
further than the passionate expression of implacable opposition
to the present regime in Libya or abhorrence of a tyrannical
dictatorship.
- The first count
relates to part of one of twenty one files contained on a CD
downloaded from a Jihadist website, entitled "a special training
course on the manufacture of explosives for the righteous
fighting group until God's will is established". The Crown
suggests that this document provides detailed instructions on
how explosive devices may be made, and that s58(1)(b) applies to
the information contained in it. The second count refers to a
handwritten document which, according to the Crown's case,
describes in detail how a terrorist cell may be set up. It is
said to be a "blueprint" for such a cell. It points a route to
Jihad, the removal of Colonel Gaddafi from power in Libya and
establishing the rule of Allah. It recommends the acquisition of
firearms suitable for action within cities and the need "to try
to learn to use explosives and mining". Accordingly this
material, too, falls within s58(1)(b).
- The appellant
denies possession of the document identified in the first count.
In summary, his defence is that he did not have it,
alternatively if it was in his possession, he was ignorant of
its contents. It is also suggested that the information would be
unlikely to be of assistance to a would-be terrorist. The
appellant accepts that he was in possession of the handwritten
document which is the subject of the second count. The defence
is that this document was passed to him by a leader of a
resistance movement in Libya, as part of an intended plan to
establish a movement in Libya opposed to the present regime
headed by Colonel Gaddafi. The defence draw attention to its
condemnation of the injustice and oppression of the Gaddafi
regime, and an asserted insistence that the activities of the
proposed opposition movement should not harm civilians or
foreigners. Its targets are Colonel Gaddafi himself, his secret
police and his army. The document anticipates that the Gaddafi
regime will be replaced by a popular movement of devout Muslims.
General
- Terrorism is an international
modern scourge. In recent years, New York, Bali, Madrid, London
and Sharm el-Sheikh have all suffered the dreadful experience of
indiscriminate slaughter resulting from terrorist activity.
Sadly, it would be wrong to conclude that a line can now be
drawn underneath that list, or that the names already on it will
never reappear. The protection of the community as a whole is
one of the first great responsibilities of government, and in
this country it is Parliament which provides the legislation
appropriate to address the threat posed by terrorism.
- We shall not attempt to
discuss the history of political thought, or the principles of
political theory and obligation, as developed in this country
and abroad, or indeed to refer to the many important texts
included in our papers and referred to in argument.
However as the argument
advanced it became increasingly clear that, despite the
commonality of view that terrorism was detestable, subtle
refinements and differences about its true meaning could
legitimately arise for discussion.
Much thought was given to
the right to rebel against a tyrannous or unrepresentative
regime. We were shown that
John Locke observed in his
Second
Treatise of Government that the "people" were entitled to
resume
"their original liberty" when the legislators sought to "reduce
them to slavery under arbitrary power".
The
United States
Declaration of Independence (1776) having identified the famous
"self evident" truths, added that "whenever any Form of
Government becomes destructive of these ends, it is the Right of
People to alter or to abolish it, and institute new Government".
The preamble to the
Universal Declaration of Human Rights 1948 acknowledges the
possibility of citizens having recourse "as a last resort to
rebellion against tyranny and oppression".
Article 1 of the
International Covenant on Civil and Political Rights 1966
underlines that "all peoples have the right to self
determination". By virtue of that right they freely determine
their political status.
We rather doubt whether
the authors of these texts would have supported terrorism in its
modern form. That said, we were also told that protection is
provided in international law for a number of categories of
"freedom fighters", by making it clear that if they avoid "war
crimes", they may be treated as legitimate combatants. If so,
violence in a justified cause cannot be said to be the exclusive
prerogative of governments.
- The call of resistance to
tyranny and invasion evokes an echoing response down the ages.
We note, as a matter of historical knowledge, that many of those
whose violent activities in support of national independence or
freedom from oppression, who were once described as terrorists,
are now honoured as "freedom fighters".
Others, who continued to
use violence to maintain resistance to national enslavement by
invading forces, after the official surrender by their own
governments, are regarded as heroes and heroines.
Those who died in these
causes were "martyrs" for them. Indeed we can look about the
world today and identify former "terrorists" who are treated as
respected, and in one case at least,
an internationally revered
statesmen.
In many countries statues
have been erected to celebrate the memory of those who have died
in the course of, or have been executed as a result of, their
violent activities, but who in time have come to be identified
as men and women who died for the freedom and liberty of their
countries or their consciences.
- Violence, of
course, is not the only way. In "Non-Violence in Peace and War"
(1942)
Mahatma Ghandi posed the question which demands an answer
every time violence is used, even in a just cause. "What
difference does it make to the dead, the orphans and homeless,
whether the mad destruction is wrought under the name of
totalitarianism or the holy name of liberty or democracy?"
- The next general matter
which requires attention, in view of the arguments, is rather
different. This feature relates not to the activities of
terrorists, but to the impact on law-abiding citizens of
legislation, intended to protect them from the terrorist threat,
which nevertheless interferes with their ordinary freedoms and
liberties.
Mr Robertson suggested
that the current terrorism legislation has had this effect. In
due course, we shall address the argument that legislation of
this kind should be construed so as to ensure that so far as
possible the ordinary rights enjoyed by citizens are maintained,
and that they should not be lost through oversight or ambiguity.
That said, Parliament has
been and will no doubt continue to be aware of the dangers of
over-zealous, unnecessary interference with them. For example,
we note that in December 2005 the Joint Committee on Human
Rights spoke of the problems arising from the fact that
"counter-terrorism measures were capable of application to
speech or actions concerning resistance to an oppressive regime
overseas…"
- These are
some of the considerations which give rise to uncertainties
about the true definition of terrorism, and the difficulties of
resolving them. The debate can be lengthy. For present purposes,
however, the only definition which requires our attention is
found in section 1 of the 2000 Act.
The 2000 Act
- Section 1 of the Act
is central
to the current anti-terrorism legislation. It does not create
any offence, but rather defines the word which permeates the
entire legislative structure. This includes not only the Act,
with insertions made by the
Crime (International Co-operation) Act 2003, but also the
Anti-Terrorism Crime and Security Act
2001, the
Prevention of Terrorism Act 2005, and the
Terrorism
Act 2006. The definition has also been incorporated into a
number of different recent Acts of Parliament, of which one
example is s31(1) of the
Civil Contingencies Act 2004
.
- We
immediately accept Mr Robertson's submission that when
construing this section, we should bear in mind that the
legislation as a whole creates serious inroads into and
restrictions on what we in this country have for many years
regarded as inalienable freedoms, now cemented and amplified in
the
European Convention of Human Rights (ECHR).
- Section 1 of
the 2000 Act provides:
"(1) In this Act "terrorism" means the
use or threat of action where
(a) the action falls within
sub-section (2),
(b) the use or threat is designed to influence the
government or an international governmental organisation
or to intimidate the public or a section of the public,
and
(c) the use or threat is made for the purpose of
advancing a political, religious or ideological cause.
(2) Action falls within this sub-section if it
(a) involves serious violence against a person
(b) involves serious damage to property
(c) endangers a person's life, other than that of the
person committing the action,
(d) creates a serious risk to the health or safety of
the public or a section of the public, or
(e) is designed seriously to interfere with or seriously
to disrupt an electronic system.
(3) The use or threat of action falling within
sub-section (2) which involves the use of firearms or
explosives is terrorism whether or not sub-section (1)(b) is
satisfied.
(4) In this section
(a) "action" includes action outside the United Kingdom
(b) a reference to any person or to property is a
reference to any person, or to property, wherever
situated,
(c) a reference to the public includes a reference to
the public of a country other than the United Kingdom
(d) "the government" means the government of the United
Kingdom, or a Part of the United Kingdom or of a country
other than the United Kingdom."
- Terrorism therefore extends to terrorist
activities here and abroad, and terrorist actions against
foreign governments fall within its ambit. The extension of
terrorism offences to include terrorist activities abroad is a
constant theme of the legislation, no doubt reflective of the
international nature of terrorism, and perhaps also, of the need
to avoid the United Kingdom becoming or appearing to be a safe
haven for terrorists of any nationality, whether ultimately
intent on pursuing their objectives in this country, or abroad,
or in their own native countries.
On the face of it, governments of countries
other than the United Kingdom are to be protected from terrorist
activities organised and planned here. This aspect of the
legislation was reinforced by the insertion of s63 A-E into the
2000 Act by the
Crime (International Co-operation) Act 2003,
which makes clear that a resident in the United Kingdom would be
guilty of an offence here if his actions abroad would have
constituted an offence under s54 or ss56-61 of the 2000 Act if
perpetrated in the United Kingdom.
- Section 58
provides:
(1) A person commits an offence if
(a) he collects or makes a record of
information likely to be useful to a person committing
or preparing an act of terrorism, or
(b) he possesses a document or record containing
information of that kind…
(3) It is a defence for a person charged with an offence
under this section to prove that he had a reasonable excuse
for his action or possession…"
Section 118 deals expressly with a
number of provisions providing expressly for defences of the
kind identified in s58 (3). S118 (2) provides that where a
defendant
"adduces evidence which is sufficient to raise an issue
with respect to the matter the court or jury shall assume
that the defence is satisfied unless the prosecution proves
beyond reasonable doubt that it is not".
- These
sections of the Act only arise for consideration if the first
ground of appeal fails.
The First Ground of Appeal
- The first issue in the appeal is
whether the phrase "the government" in s1(1)(b), as explained in
s1(4)(d) in relation to foreign governments, indicates and is
limited to those countries which are governed by what may
broadly be described as democratic or representative principles.
The submission on behalf of the appellant is that governments
which constitute, for example, a dictatorship, or a military
junta, or a usurping or invading power, are not included within
the protective structure of the Act. Mackay J rejected this
submission, which we must now address.
- On this issue
the submission for the appellant is based on two linked strands
of argument. It is suggested that Mackay J's conclusion was
wrong on the basis of ordinary techniques of statutory
construction. Alternatively, if this argument is not
self-sustaining, his conclusion fails when the statutory
framework is put into the context of ordinary principles of
construction, our own political and legal traditions, the ECHR
itself, and our international commitments.
- What we may
describe as the construction argument proceeds by way of
emphasising the penal nature of the legislative structure and
the well known principle that any ambiguities in such
legislation should be resolved in favour of the defendant.
Attention is drawn to s1(4)(d) in which the language which would
apply to Libya in the present context – "the government…of a
country other than the United Kingdom" – should take its meaning
from the previous phrases "the government of the United Kingdom,
or a Part of the United Kingdom". It is said that the
application of the eiusdem generis rule makes clear that
as the governments of the United Kingdom and its parts, Scotland
and Wales, are representative, the same quality must infuse the
governments of countries other than the United Kingdom before
they fall within the protective ambit of the legislation.
- More complex issues
arise from the second strand to the argument. The interpretation
for which Mr Robertson contends is said to be "mandated" by s3
of the
Human Rights Act 1998, which requires domestic
legislation to be interpreted "so far as possible" to conform
with Article 3 of Protocol 1 of the European Convention of Human
Rights ("ECHR"), adopted in 1952, and expressly incorporated
into United Kingdom law by s1 (1) (b) of the Human Rights Act.
The countries which have
incorporated Protocol 1 are committed to representative or
democratic rule. The fundamental rights and freedoms enjoyed by
countries which are parties to the Convention are best preserved
by "an effective political democracy". In effect, no other
system of government in countries which are party to the
Convention is permissible. (See, for example, United
Communist Party of Turkey and others 26 EHRR 121;
Kjeldsen, Busk Madsen and Peddersen v Denmark 1EHRR 711)
- No authority is needed
for the proposition that democratic government based on the
consent of the people, and subject to the rule of law, is the
lodestar for modern civilised communities. We agree that it is
an essential qualifying characteristic of the governments of
countries which adhere to the European Convention that they
should be democratic representative governments.
That however is far from
saying that the only governments which can be included in
legislation which provides for protection against terrorism are
to be found in countries which adhere to the Convention or
governed in accordance with its principles.
Mr Robertson reminded us
of Lord Steyn's observation in Ghaidan v Godin-Mendoza
[2004] 2 AC 557, at paragraph 50, that there is "a strong
rebuttable presumption in favour of an interpretation consistent
with Convention rights".
From this foundation he suggested that,
even if the inevitable infringement of the freedoms provided at
common law and under the ECHR were proportionate and justified
in relation to countries governed by representative governments,
as a matter of construction, these rights, and in particular the
right to freedom of expression, should not be restricted in
order to protect governments which were unrepresentative.
A distinction should be drawn between
tyrannous government, for whose benefit the infringement on the
liberties enjoyed by citizens here would be wholly
inappropriate, and the innocent citizens of countries subject to
such governments. Their protection would justify some at any
rate of the restrictions created by the terrorist legislation,
but did not extend to the tyrants under whose yoke they were
forced to live.
- The argument does not
stop with the Convention. The interpretation of "terrorism", as
defined in s1, is subject to the presumption that "Parliament
does not intend to act in breach of "public" international law,
including their unspecific treaty obligations; and if one of the
meanings that can reasonably be attributed to the legislation is
so consonant, it is to be preferred". (Per Diplock LJ in
Salomon v Customs and Excise Commissioners [1967] 2 QB 116
of 143.)
We have already noted the
preamble to the Universal Declaration of Human Rights. The
United Kingdom has ratified the International Convenant on Civil
and Political Rights, which underlines the right of every
citizen to vote and "to be elected" and to be granted an
"effective opportunity to enjoy the rights" protected by the
Convention. For present purposes, no further citation is
necessary. The links established between the principles
enshrined in the law of England and Wales and the international
obligations of the United Kingdom were deployed to reinforce Mr
Robertson's basic submission.
- In summary, Mackay J's
interpretation of section 1 of the 2000 Act has produced a
result which means that Parliament deviated from its obligations
under the Convention, and international law, by treating as
terrorists individuals who oppose regimes in countries subject
to dictators, and invaders, and indeed to regimes which are
denied recognition in the United Kingdom, or are involved in war
or warlike confrontation with the forces of the United Nations,
NATO or indeed the United Kingdom itself.
The measures included in
the legislation extend to significant interference with the
normal principles of liberal democracy. They may be an
appropriate response to protect such communities from the threat
of terrorism. It is not acceptable for, and the legislation is
not intended to provide, the same restriction to hinder or
prevent the activities of those seeking to establish the
freedoms which we enjoy here. In these circumstances, Mackay J's
construction of s1 was wrong.
- We have examined these
arguments with the deference that their importance deserves. We
must return to the legislation. We have no difficulty with the
principles of construction.
However, we are unable to
see how they apply to assist the appellant. We cannot identify
any ambiguity or absurdity in section 1(4)(d).
In our judgment the
meaning of the phrase – "a country other than the United
Kingdom" – is plain enough. It follows entirely logically from
the references to actions outside the United Kingdom (s1(4)(a))
and "public of a country other than the United Kingdom"
(s1(4)(c)), and serves to reinforce the international dimension
of the protection against terrorism provided in domestic
legislation.
We can see no reason why,
given the random impact of terrorist activities, the citizens of
Libya should not be protected from such activities by those
resident in this country in the same way as the inhabitants of
Belgium or the Netherlands or the Republic of Ireland. More
important, we can see nothing in the legislation which might
support this distinction.
- What is striking about
the language of s1, read as a whole, is its breadth. It does not
specify that the ambit of its protection is limited to countries
abroad with governments of any particular type or possessed of
what we, with our fortunate traditions, would regard as the
desirable characteristics of representative government.
There is no list or
schedule or statutory instrument which identifies the countries
whose governments are included within s1(4)(d) or excluded from
the application of the Act. Finally, the legislation does not
exempt, nor make an exception, nor create a defence for, nor
exculpate what some would describe as terrorism in a just cause.
Such a concept is foreign to the Act. Terrorism is terrorism,
whatever the motives of the perpetrators.
- The forensic focus in
argument on s1 (4) (d) may have distracted attention from s1 as
a whole, and in particular the provisions of s1 (3), which
refers to activity involving the use or threat of firearms or
explosives.
Terrorist action outside
the United Kingdom which involves the use of firearms or
explosives, resulting in danger to life or creating a serious
risk to the health or safety of the public in that country, or
involving (not producing) serious personal violence or damage to
property, or designed seriously to interfere with an electronic
system, "is terrorism", whether or not its use is "designed to
influence the Government or an international governmental
organisation or to intimidate the public or a section of the
public". The offences alleged in the two counts in the present
indictment contemplate the use of firearms or explosives.
- In the context of the
ECHR, we draw attention to Article 2, and the right to life, and
the obligation on the state to take appropriate steps to
safeguard life and, for that purpose, to ensure an effective
system of criminal law. By its nature terrorism is
indiscriminate. An assassin may target an individual national
leader.
If Mr Robertson is right
it may then be argued that his fatal stroke would not amount to
terrorism for the purposes of the Act. It was however open to
Parliament to decide that because of the evils of terrorism and
the manifold dangers that terrorist activities create, it should
impose a prohibition on the residents of this country from
participating or seeking to participate in terrorist activities,
which may have a devastating impact wherever in the world they
occur.
The same potential for
criminal sanctions has been applied to British citizens who
commit or solicit murder abroad. It would be strange if a
British citizen could involve himself in terrorist activities
which ended in the assassination of Colonel Gaddafi in Libya,
and be liable to conviction for his murder, but immune from
prosecution under the terrorist legislation if his activities
came within the definition of terrorism, but his plan to kill
Colonel Gaddafi was prevented by the security services, or by
his own incompetence.
- The other feature of the
debate which lends support to Mackay J's conclusion, is that the
construction for which the appellant is contending would require
the jury to assess whether or not the particular government
against which terrorist activity was planned or carried out,
fell within the description of a representative or democratic
government.
Some
governments are undeniably representative, although even our own
constitutional arrangements are sometimes chided as an elected
dictatorship. Other countries are subject to governments which
are definitely not representative.
Where such countries are
identified it is assumed that the inhabitants would immediately
welcome the substitution of the government which they have for
one answerable to democratic principles, but even under the yoke
of tyranny, not all the inhabitants would welcome terrorist
violence.
There are yet other
countries where the issue – democratic or not - is subject to
serious debate. Mr Perry added a further consideration, to the
effect that if it were ever permissible to visit terrorist
activities on a tyrannical government, would that immunity
extend to a group seeking by violent means to foist its own
different but equally undemocratic principles on the country
whose tyrant was overthrown?
- We note that the
membership of the United Nations includes countries run by
governments not all of which share our commitment to or
exemplify the operation of the democratic process. We do not
abandon our membership of the United Nations because of the
doubtful democratic credentials of some of the other members.
And on occasions recent
history shows that elected governments here have decided, in the
national interest, to make common cause with the governments of
countries whose representative credentials were open to profound
reservations.
It would be unrealistic
to approach the terrorist legislation on the basis that
Parliament envisaged that it should not apply to countries
allied to us or to other members of the United Nations. That is
not what this legislation provides.
- In our
judgment, in agreement with Mackay J, the terrorist legislation
applies to countries which are governed by tyrants and
dictators. There is no exemption from criminal liability for
terrorist activities which are motivated or said to be morally
justified by the alleged nobility of the terrorist cause.
The second ground of appeal
- This ground arises from our conclusion
about the construction and ambit of s1 of the Act. It is
contended that Mackay J was wrong to conclude that as a matter
of law the appellant was not entitled to argue that s58 (3) of
the Act permitted him to advance as a "reasonable excuse" for
the possession of the documents which form the basis of the
allegations in the indictment that they "originated as part of
an effort to change an illegal or undemocratic regime".
Consideration of this ground requires us to
assume that the prosecution will demonstrate that the activities
and behaviour of the appellant did indeed constitute the
terrorist offences alleged against him. Only then would the
"reasonable excuse" issue arise.
- Mackay J was
anxious for it to be understood that his ruling was limited to
this single specific "just cause" question. He was not
considering, and in particular not ruling out in advance any
alternative "reasonable excuse" which the appellant might seek
to advance on the facts. He was also prepared to approach the
argument by assuming that the appellant would be able, by
evidence or admission, to demonstrate that the current regime in
Libya is indeed unrepresentative and tyrannical.
- As the argument
developed we detected a suggestion that the documents identified
in the two counts amounted to no more than an attempt to impart
information and ideas which merited protection under ordinary
principles relating to established rights to freedom of
expression at common law and under the ECHR.
We have already
explained, however, that if the jury were to conclude as a
realistic possibility that the documents were addressing
argument and exhortation against and expressing disapproval and
opposition in the strongest terms of the current regime in
Libya, and no more, the appellant would be entitled to be
acquitted. The right to freedom of expression is not in issue in
these proceedings.
- Various arguments were
advanced before us. We shall deal with them briefly. It was
suggested that the decision represented a judicial usurpation of
the function of the jury. This was impermissible (R v Wang
[2005] 1 WLR 661;
[2005] UKHL 9 ). The statutory defence in s58 (3) required a
decision of fact which should be left to the jury.
It was also suggested that Mackay J was
wrong to rely, the extent that he did, on R v Jones
[2006] 2 Cr App R 9;
[2006] UKHL 16 . In Jones the House of Lords
considered the question whether criminal damage committed at
military installations in the United Kingdom was excused by s 3
of the Criminal Law Act 1967, which provides that an individual
may use "such force as is reasonable" to prevent crime. It was
argued in Jones that the government in the United Kingdom
was acting contrary to customary international law. Mackay J
drew attention to the speech of Lord Hoffmann, that a defendant
could not act "as if he was a sheriff in a Western, the only
lawman in town".
This graphic observation underlined the
essential reasoning that the use of force must be tightly
controlled if society is not to slide into anarchy. In a modern,
properly functioning state, the remedy of "self help" was
limited, and save in exceptional circumstances, it is
inappropriate for an individual to use violence in order to
champion his own, or a third party's, or even a perceived view
of the public interest.
- Mackay J
acknowledged that Jones was directed to entirely domestic
issues. Mr Robertson suggested that the decision, and the basis
for it, was distinguishable because Jones related to
events within England and Wales, a developed liberal democracy,
rather than activity focussed, as it is in this case, on a
foreign undemocratic country, where resort to self help might be
more compelling. We recognise the distinction, but even if the
long term target for the appellant was the present government in
Libya, the prohibited activities alleged against him took place
here.
- The fundamental flaw
with Mr Robertson's submissions is that, on analysis, they are
circular. They depend on the proposition that a reasonable
excuse for conduct which constituted a crime may be found in the
commission of the very crime prohibited by the statute. If
correct, this would introduce an impossible incoherence into the
statutory provisions. And for such an excuse to be "reasonable",
the carefully constructed definition of terrorism in s 1 of the
Act would become inoperative.
Given the overall
context, if Parliament had intended that this defence should
apply in such circumstances, it is inconceivable that the
statute would not expressly have addressed the problem either by
an express restriction on the application of the Act to
countries with a representative, democratic government, or by
providing that an individual with a genuine grievance about a
tyrannical regime should fall outside the statutory provisions
which create terrorist offences. In reality, our conclusion on
this second ground of appeal follows inexorably from our
rejection of the first ground.
- Mackay J was
required to address a question of law. Unless the purported
excuse was capable of being "reasonable" as a matter of law, it
was not relevant to any issue at trial and evidence in support
of it would be inadmissible. In our judgment his ruling did not
usurp the function of the jury, nor interfere with its normal
fact-finding responsibilities. We agree with, and respectfully
adopt his conclusion that, as a matter of law, the defence under
s58 (3) is not available "to achieve in effect a construction of
the statute which is contrary…to the intention of Parliament
which passed it". Moreover we should add that for case
management purposes he made this ruling at an entirely
appropriate point in the proceedings.
- Two
subsidiary points need brief mention. Reference to Parliamentary
material as an aide to the construction issues was unnecessary.
Pepper v Hart
[1993] AC 593 did not apply. Second, our decision about the
proper construction of terrorism for the purposes of the Act was
wholly uninfluenced by the statutory arrangements in s117 of the
Act, requiring the consent of the Attorney General, or Director
of Public Prosecutions (as the case may be) to a prosecution.
Such consents no doubt contribute to sensible decision making by
the prosecution, but the process which requires them does not
bear on the proper construction of statutory language affecting
the administration of criminal justice.
- This appeal
is dismissed.
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