Criminal law - Military Dissemination of terrorist publications

R v Gul: Court of Appeal, Criminal Division (Sir Anthony May P, Mr Justice Silber and Mr Justice Kenneth Parker): 22 February 2012

Section 1 of the Terrorism Act 2000, so far as material, 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, racial 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.'

The defendant was a British national who was born in Libya. He uploaded videos onto the internet which the prosecution contended encouraged the commission of terrorism pursuant to section 1 of the Terrorism Act 2000, as amended. The videos had been posted on the internet site, YouTube, as well as other sites and they included attacks by al-Qaeda, the Taliban and other groups on military targets, images of Osama bin Laden and others, the 9/11 attack on New York and other clips of attacks on civilians and police. The videos were accompanied by 'nasheeds' praising the bravery and martyrdom of those carrying out the attacks. The defendant was charged with terrorist offences.

At the first trial, he was acquitted on some counts and the jury failed to reach a verdict on others. At the second trial, the defendant faced six counts charging the dissemination of terrorist publications contrary to section 2 of the act. After the jury had retired, they sought clarification from the judge as to whether the attacks on soldiers in Iraq and Afghanistan as shown on the video clips were terrorism within the definition in section 1 of the act. The judge said that they were. The defendant was convicted of five out of six counts charged. He appealed against conviction.

The issue for consideration was whether the definition of terrorism in section 1 of the act had to be read down and interpreted to mean that attacks on coalition forces in Iraq and Afghanistan, during an insurgency in 2008 and 2009, were not terrorist attacks, and whether international and domestic law exempted persons who carried out such attacks from prosecution under criminal law. The defendant contended that he had not encouraged terrorism by showing the clips of the attacks on the military in Iraq and Afghanistan. He had been encouraging self-defence as the force used against the military had been to resist an invasion and hence had been justified.

He further contended that 'combatant immunity' (from criminal law) extended to immunity for those participating in acts against the military in armed conflict. The question of whether the conflict had been an international armed conflict was a question of fact for the jury. The prosecution contended that it was a matter of 'high policy' exclusively for the determination of the executive branch of the state and not for the judicial branch. A certificate of the foreign secretary stated that the conflict at the relevant time constituted a 'non-international armed conflict' between the government of Iraq, and Afghanistan respectively, and various 'insurgent armed forces'. Consideration was given to R v F [2007] 2 All ER 193. The appeal would be dismissed.

The definition in section 1 of the act was clear. Those who attacked the military forces of a government or the coalition forces in Afghanistan or Iraq, with the requisite intention set out in the act, were terrorists. In domestic law, it was established principle that there was no exemption from criminal liability for terrorist activities which were motivated or said to be morally justified by the alleged nobility of the terrorist cause. R v F emphasised the broad definition of terrorism in the act. There was nothing in international law which either compelled or persuaded the court to read down the clear terms of the act or to exempt such persons from the definition in the act (see [49]-[52], [60] of the judgment).

In the instant case, the defendant's submissions failed because, although international law might well develop through state practice or opinio juris - a rule restricting the scope of terrorism so that it excluded some types of insurgents attacking the armed forces of government from the definition of terrorism, the necessary widespread and general state practice to that effect had not yet been established (see [47] of the judgment).

R v F [2007] 2 All ER 193 applied; KJ (Sri Lanka) v Secretary of State for the Home Department [2009] All ER (D) 41 (Apr) considered; R v Khawaja [2010] ONCA 862 approved; R (on the application of Evans) v Secretary of State for Defence [2010] All ER (D) 219 (Jun) considered; DD (Afghanistan) v Secretary of State for the Home Department [2010] All ER (D) 140 (Dec) considered.

Tim Moloney QC and Tatyana Eatwell (assigned by the Registrar of Criminal Appeals) for the defendant; Sean Larkin QC, Malcolm Shaw QC and B David (instructed by the Crown Prosecution Service) for the Crown.