“Of course, we can all invent hypothetical circumstances—fantastic circumstances—in which any of us, according to the criminal code, could be charged and subject to conviction; but there is no point in our doing so. We know that, in the real world in which we live, the criminal law is subject to a significant series of checks and balances, including proper invigilation by the courts of the land and control of the Crown Prosecution Service by Members of Parliament who are answerable to the House of Commons and the other place. Such circumstances therefore do not arise, and I do not believe that they ever will”.
Tell that to Josh Walker; in the summer of 2015 he was organising a student role playing game at his university in Aberystwyth. To make it more real he signed into his student library internet account, searched and printed off a partial copy of the Anarchist Cookbook, a ragbag originally produced in early 1970s USA containing a mix of pranks, firework and bomb recipes and tips on how to make free phone calls and cheat the US credit card companies. He could have bought a copy off Amazon, but didn’t bother. At the end of the game the students planned to destroy all the paperwork but Josh forgot and ended taking the partial book and some other random papers home. A year and a half later they were found in the drawer under his bed.
In the meantime Josh had seen what was going on in Syria and flown out to help the Kurdish groups who were fighting against ISIS. He came home in December 2016 and was arrested as police tried to work out what he had been doing in the Middle East; he was not charged for helping the same group that the Americans, the French and the UK are assisting, but a police search of his Aberystwyth bedsit found the book and 10 months later he stood trial in Birmingham Crown Court, accused of possessing information likely to be useful to a terrorist, under section 58 of Jack Straw’s 2000 Act.
No one said Josh Walker was going to make one or more of the bombs described in the book. No one said he knew any terrorists. No one said there was any sensible prospect of a terrorist looking in the drawer under the bed in his room. Yet the terms of section 58 don’t require the person owning the book to be a terrorist, nor that their copy of the book might fall into the hands of a terrorist; if the information in the book is such as is “likely to be of use to a terrorist” the owner is guilty unless he or she has a “reasonable excuse”.
It wasn’t meant to be this way. Jack Straw thought he was passing a law that would only be used to stop terrorism. The House of Lords in the appeal of G seem to have been told the offence would not be used against books such as an “A to Z” and placed great faith in prosecutors who are “very familiar with the need to exercise a wise discretion in deciding whether taking proceedings would ultimately be in the public interest”. Tell that to Josh.
And so, on 23 October 2017 Josh Walker and his legal team turned up at Birmingham Crown Court. An application was made for the trial Judge to halt the prosecution on the basis it was an unjustified interference with both common law rights and the European Convention right to “receive information”, and that the Director of Public Prosecutions’ consent to the case proceeding should never have been given. The Judge refused and the trial started. Three days later a Birmingham jury decided that a student owning a book with no intention to harm anyone was a reasonable excuse and Josh Walker was found not guilty.
Questions remain. What was the public interest in prosecuting this case in the first place? Do Jack Straw’s assurance to Parliament and the expectation of the Law Lords in G count for nothing? And if the CPS wishes to criminalise a book, why not pick on someone their own size, like Amazon, instead of a student on legal aid who had risked his life fighting terrorists in Northern Syria? Someone really ought to ask the DPP.
This post originally appeared on the Doughty Street Chambers website and is reproduced with permission and thanks