Case comment: R v Faraz – Terrorist publications and free speech in the Court of Appeal – Edward Craven

In R v Ahmed Faraz [2012] EWCA Crim 2820 a man dubbed ‘the terrorists’ favourite bookseller’ successfully challenged seven convictions for disseminating ‘terrorist publications’ under s.2 of the Terrorism Act 2006. The Court of Appeal quashed his convictions after ruling the jury had been improperly told that named terrorists possessed identical DVDs and books. At the same time, it held the legislation did not unlawfully encroach on the appellant’s right to free expression.

The judgment illustrates the intricacies and pitfalls of the controversial ‘encouragement’ offences under the 2006 Act. It also touches on – but adds little to – the relationship between those offences and the right to free expression under Article 10.

Factual Background

The appellant was the manager of the Maktabah Islamic bookshop in Birmingham. The prosecution alleged he sold books and DVDs, which included titles such as 21^st Century Crusaders and Defence of the Muslim Lands, that encouraged Muslims to attack non-believers and seek martyrdom in the pursuit of jihad. The appellant claimed the materials stimulated discussion of theological and political ideas, but did not encourage terrorism.

Terrorist publications – The Terrorism Act 2006

Under s.2(1)(a) of the Terrorism Act 2006 it is an offence to distribute a ‘terrorist publication’ with the intention of directly or indirectly encouraging the commission of terrorist acts. The same offence may be committed recklessly under s.2(1)(c). For these purposes:

• ‘terrorist publications’ include publications that are likely to be understood by some people who access them as a direct or indirect encouragement to commit terrorist acts (s.2(3));
  • indirect encouragement includes ‘glorification’ (which includes any form of praise or celebration) of terrorism where the reader is likely to infer that he should emulate the terrorist acts ‘in existing circumstances’ (s.2(4));
  • however it is irrelevant whether any person is in fact encouraged to commit an act of terrorism by the publication (s.2(8)).

In support of its case the prosecution sought to adduce evidence that a number of terrorists possessed materials identical to those sold by the appellant. They included several men convicted of plotting to blow up transatlantic airliners, two men who took part in a suicide bombing in Israel, two convicted members of Al Qaeda, and Mohammad Sidique Khan, the ringleader of the 7/7 suicide bombers. The prosecution also sought to admit statistical evidence which showed that, of 94 recent terrorism investigations, 26% revealed items linked to the appellant’s bookshop.

The judge allowed this evidence to go before the jury on the basis it was both explanatory (showing who possessed the materials supplied from the appellant’s bookshop) and probative (being strong evidence that the materials were in fact ‘terrorist publications’ as defined by the Act).

The jury convicted the appellant of seven counts of disseminating terrorist publications. (He was also convicted of four counts of possessing information likely to be useful to a person committing or preparing an act of terrorism – these convictions were not addressed in the appeal).

First ground of appeal: the use of ‘other case’ evidence

Section 2 required the jury to assess whether it was likely that a significant number of people who may access the material would interpret it as an encouragement to commit acts of terrorism. However it was irrelevant whether anyone was actually so encouraged (s. 2(8)).

The Court of Appeal therefore held the ‘other case’ evidence should only have been admitted for the limited purpose of demonstrating that the bookshop’s readership included people who were prepared to commit terrorist acts. It was not admissible to show individuals were actually encouraged to commit acts of terrorism [46].

Pitchford LJ said there was a significant danger of eliding two questions: ‘Would some of the readership have understood the publication to commit the terrorist acts?’ (the right question) and ‘Did the publications encourage terrorists to commit the terrorist acts?’ (the wrong question) [47]. The jury were not adequately directed about this distinction [48].

Nor were they warned about the limitations and pitfalls in the evidence, which gave rise to a significant risk of guilt by association:

‘the danger inherent in admitting the evidence even for that extremely limited purpose is manifest. The danger is that the jury would condemn the publication purely by reason of its association with known terrorists. The temptation to move to the conclusion that terrorists would not be in possession of a publication unless it encouraged them to acts of terrorism is a powerful one; but such a conclusion would, of course, be speculative, unfair and prejudicial.’ [46]

In other words, the mere fact that terrorists were in possession of books and DVDs supplied by the appellant could have lead the jury to conclude – wrongly – that the publications must necessarily be ‘terrorist publications’.

The 26 per cent statistic and added a further prejudicial dimension. Significantly, it was not known how many young Muslim men, who had no terrorist intentions whatsoever, also possessed the relevant material. Without this figure, the statistic was virtually useless: it cast no light on whether people who read the appellant’s material were likely to be terrorists, nor whether the material was likely to encourage the commission of terrorist acts [47].

For these reasons, the convictions were unsafe and would be quashed [58].

Second ground of appeal: Article 10 ECHR

At a pre-trial hearing the judge found that the offences created by s.2 were a proportionate restriction on freedom of expression for the purposes of Article 10(2).
He also held that:

• Recklessness under s.2(1)(c) meant subjective recklessness – the defendant must have ‘knowledge of a serious and obvious risk’ that the publication would encourage terrorist offences.
• Encouragement to commit terrorist acts meant encouragement to commit a terrorist act within a reasonable time in the current context.
• The requirement that it was ‘likely’ a publication would encourage acts of terrorism meant it must be ‘probable’ the publication would have that effect. Discussion, criticism or explanation would not be enough.
• In relation to ‘indirect’ encouragement, as a minimum the publication must encourage terrorist acts by ‘necessary implication’.

The appellant argued the judge should have gone further to protect his Article 10 right in relation to one publication, ‘Milestones – special edition’, which the appellant had edited himself. In particular:

• When dealing with publications expressing ‘political or religious ideas’ it should not be possible to convict someone on the basis they were merely reckless as to whether the publication was likely to encourage terrorism. Actual intent should be required.
• Publication of a ‘legitimate expression of a political or religious view’ should not be an offence.
• Encouragement must relate to the imminent commission, preparation or instigation of terrorist acts.
• The judge should have left an Article 10 defence to the jury, namely that they 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 Court of Appeal refused to be drawn into a general examination of the 2006 Act. However they were satisfied the judge’s directions respected the appellant’s right to free expression:

‘It was perfectly obvious to the jury that they could not convict the appellant merely because his publication expressed a religious or political view, controversial or not. We do not consider it arguable that a publication which to the knowledge of the appellant carried a real risk that it would be understood by a significant number of readers as encouraging the unlawful commission of terrorist offences (as defined by the judge) is entitled to exemption (in consequences of Art 10) merely because it expressed political or religious views.’ [54]

The appellant was entitled to emphasise his right to free speech. But:

‘Provided, as here, the importance of applying the legal meaning of the section as defined by the trial judge is stressed, there is no risk that the Art 10 right is unlawfully encroached.’ [57]

The Court of Appeal noted that in R v Brown [2011] EWCA Crim 2571 Lord Judge CJ had reached a similar conclusion:

‘[I]t is difficult to see how a criminal act of distribution or circulation of a terrorist publication with the specific intent, or in the frame of mind expressly required as an essential ingredient of this offence to encourage or assist acts of terrorism, can be saved by reference to the principle of freedom of speech, unless that principle is absolute, which, as we have indicated, it is not.’ [23]

Comment

The Court of Appeal’s judgment went unreported until The Times ran the story last weekend under the front-page headline ‘Terror text bookseller is cleared to publish’. However the judgment certainly gives no green light to publish the materials in question. The judges did not find the appellant had acted lawfully – they merely decided his convictions were unsafe because prejudicial evidence had gone before the jury without adequate safeguards.

The Court of Appeal was right to quash the convictions. The evidence linking the appellant’s publications with named terrorists gave rise to an obvious and unacceptable risk of guilt by association.  Even with a strong health warning, it would have been all too easy for the jury to jump from the fact of possession by terrorists to the automatic conclusion the materials were ‘terrorist publications’. This danger was compounded by the use of the flawed 26 per cent statistic – a classic illustration of the need for care when using statistical evidence in criminal trials.

At the same time, the judgment shows that appeals to free speech are unlikely to assist defendants who fall within the terms of the Act. The domestic courts have made it clear they consider the legislation to be Article 10 compliant without further ‘reading down’ being necessary.

It is unlikely the Strasbourg Court would take a different view on the facts of this case. An expert who testified at the trial described the appellant’s videos as ‘a toxic mix of propagandist speeches by known terrorists alongside footage glorifying extreme violence’. Hate speech which negates the fundamental values of the ECHR is caught by Article 17 (which prohibits the use of Convention rights to destroy other Convention rights): see Glimmerveen v Netherlands. And restrictions on speech which incites violence are a necessary and proportionate limitation under Article 10(2).

The Court’s recent case law reflects its hostility to publications that support terrorism and stir up hatred. In Norwood v UK the applicant was convicted of a public order offence after displaying a poster showing the Twin Towers aflame with the caption ‘Islam out of Britain – Protect the British People’. The Court declared the claim inadmissible because his actions were incompatible with the values protected by the Convention. Likewise, in Leroy v France the Court found no violation of Article 10 where a cartoonist was convicted of ‘condoning terrorism’ for drawing a cartoon expressing support for the 9/11 terrorist attacks.

Regardless of the merits of the appellant’s case, however, the appeal has renewed the debate about the use of the criminal law to punish inflammatory speech. Whether or not the Maktabah bookshop reopens for business, this is an area where we have surely not heard the last word.

Edward Craven is a barrister at Matrix Chambers