CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 juin 2011

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De Gaetano, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 4 September 2009, Having deliberated, decides as follows: THE FACTS The applicant, Mr Pa Monde Jobe, is an Gambian national who was born in 1980 and lives in Gambia. He was represented before the Court by Mr   L.   McNulty, a barrister practising in London. A. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was arrested on 15 December 2006 in Birmingham. He   remained in custody throughout the criminal proceedings against him. On arrest, he was found to be in possession of a large number of digital files containing extremist Islamist material. This included files entitled “Military Training manual”, “Al Qa’eda Training Manual”, “How Can I Train Myself For Jihad?”, and “39 ways to Serve and Participate in Jihad”. The documents were contained either on a “torrent” file, acquired through a file-sharing system on the internet or, in the case of the “Al Qa’eda Training Manual” document, on a compact disc. On the applicant’s mobile telephone the police found a video of West Midlands police head-quarters, which was alleged to have been taken with view to a possible terrorist attack. The applicant was charged inter alia with five counts of possessing a document or record containing 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. Under section 58(3) it is a defence for a person charged with an offence under section 58 to prove that he had a reasonable excuse for his action or possession. In his defence statement the applicant explained that he had acquired the torrent file when undertaking research on the internet concerning military training in his native country, Gambia. He was considering returning to Gambia in the future and wished to know what training he would need to perform in his country in order to join the army. For the document “Al   Qaeda Training Manual” he said on a number of occasions he had purchased, or was given, material relating to Islamic religious, historic and current affairs. The compact disc was one such item and, at the time of his arrest, he did not know its complete content and was not aware of that particular document. Similar explanations were given for the remaining documents, with the additional explanation that all Muslims were obliged to participate in Jihad. Finally, concerning the video on his mobile telephone, the applicant explained that he had taken it when he had just acquired the phone. While travelling on a bus, he had decided to test the video facility on the telephone. There were no signs to indicate that videoing was prohibited in that area and, indeed, the actual images captured were immaterial to him. On 12 December 2007 the applicant appeared before Birmingham Crown Court and pleaded not guilty to all the charges. He raised the “reasonable excuse” defence contained in section 58(3) of the Terrorism Act. At the time there was no legal guidance on what a reasonable excuse would be under that section. On 1 February 2008 the applicant sought an indication from the trial judge as to what sentence he would receive should he change his plea to guilty (see the Goodyear case, relevant domestic law and practice below). The applicant was advised that he would receive a maximum sentence of four years’ imprisonment, which would mean that he would be released soon after conviction since he had already spent a significant period of time on remand. If the applicant did not change his plea and was found guilty by a jury he would face a longer sentence. The applicant therefore changed his plea to guilty, and sentencing was adjourned until 25 February 2008. On 13 February 2007 the Court of Appeal handed down its judgment in the case of R v. K [2008] EWCA Crim 185, on the defence of “reasonable excuse” in section 58(3). In that case the defendant had argued that section 58(3) was too uncertain in its ambit to satisfy the principle of legal certainty. The court rejected that argument and stated that a reasonable excuse was: “simply an explanation that the document or record is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism. It matters not that that other purpose may infringe some other provision of the criminal or civil law.” The applicant believed that the effect of K was that the explanations that he had given concerning the possession of the documents were now a defence to the charges he faced. He therefore made an application for his guilty plea to be withdrawn, which was granted on 19 March 2008. In   granting the application, the trial judge also recognised that, at the applicant’s trial, he would now be obliged to direct the jury in line with the decision in K . The prosecution took an interlocutory appeal against the trial judge’s decision. That appeal was, however, dismissed by the Court of Appeal on 1   May 2008, which found that it was bound by its judgment in K . The   prosecution then appealed to the House of Lords, arguing that K had been wrongly decided. The House of Lords gave judgment on 4 April 2009 ([2009] UKHL 13). It began by setting out what the Crown would be required to prove to establish a case against an accused under section 58, stating: “The Crown must prove beyond reasonable doubt that the defendant (1) had control of a record which contained information that was likely to provide practical assistance to a person committing or preparing an act of terrorism, (2) knew that he had the record, and (3) knew the kind of information which it contained. If the crown establishes all three elements, then it has proved its case against the defendant and he falls to be convicted unless he establishes a defence under subsection (3).” It then considered the operation of the “reasonable excuse” defence in section 58(3) and observed: “It is only where the prosecution has already proved all these elements and so is otherwise entitled to a conviction, that the defendant needs to rely on the defence in section 58(3) in order to avoid conviction. If, applying section 58(3), the jury accept that the defendant had a reasonable excuse for possessing the material, then, because of that additional factor in the circumstances, he is entitled to be acquitted, even though it remains the case that the Crown has proved all the necessary elements of the offence in terms of section 58(1) . It necessarily follows that, if the jury do not accept the defence put forward by the defendant under section 58(3), the defence fails and their duty will be to convict him of the offence under section 58(1) (emphasis in original).” At paragraph 69 of its ruling the House of Lords provided the following example as to how the defence was to operate: “Suppose, for instance, the Crown proves beyond a reasonable doubt that, when a defendant was stopped and searched, a disk containing the Al Qa’eda Training Manual was found in his pocket and that he knew what was on the disk. The   defendant adduces evidence to the effect that he had found it on a train only a few minutes before and was on his way to hand it in to the nearest police station when he was stopped. Assume that this would be a reasonable excuse. The jury would have to find the defence satisfied and acquit the defendant, unless the Crown proved beyond a reasonable doubt that the defence was not satisfied – in the hypothetical example, by proving that the defendant’s story was not true and that, in fact, he was not on his way to hand in the disk when he was stopped. If the Crown proved this, then, in terms of section 118(2) [of the Terrorism Act 2000: see relevant domestic law and practice below], it would have proved that the defence was not satisfied – in other words, that it had not been made out. The supposed defence would then vanish from the scene and the Crown would be entitled to ask for a conviction on the basis of the evidence of the defendant’s possession of the disk.” The House of Lords rejected the interpretation of the “reasonable excuse” defence adopted by the Court of Appeal in K . It was not correct to interpret the defence as meaning that any non-terrorist purpose would be a reasonable purpose. The Court of Appeal’s construction of “reasonable excuse” was, in the House of Lords’ view, “utterly different” from the construction which had been put on the equivalent defence in other statutes (as those relating to possession of an offensive weapon or failure to provide a blood or urine sample in road traffic cases). It continued: “More than that, however, the Court of Appeal’s construction robs the adjective “reasonable” in section 58(3) of all substance. Neither the judge nor the jury is left with any room to consider whether the excuse tendered by the accused for, say, his possession of the document or record is actually reasonable. Provided only that he proves that his purpose was not connected with the commission etc of an act of terrorism, the Court of Appeal give him a defence under subsection (3). Indeed they expressly affirm that it matters not that the defendant’s purpose may infringe some other provision of the criminal or civil law. Suppose, for example, that the accused had a document containing information about the security system protecting the Home Secretary’s residence. The interpretation adopted by the Court of Appeal means that, if the defendant proved that he had this document because he was planning to burgle the Home Secretary’s house and steal her jewellery, this would, by definition, be a reasonable excuse since the defendant’s purpose would not be connected with the commission etc of an act of terrorism. The same would apply if the defendant’s purpose was to murder the Home Secretary for purely personal motives. Even if the jury rightly considered that these ‘excuses’ were outrageous rather than reasonable, in each case the judge would have to direct them that the defendant’s purpose amounted to a reasonable excuse in terms of section 58(3) and that they would have to acquit him. In our view, Parliament could not have intended section 58(3) to be interpreted or applied in that way.” The House of Lords instead found that any decision on whether an accused had a reasonable excuse would depend on the particular circumstances of the case. It concluded (at paragraph 81): “Unless the judge is satisfied that no reasonable jury could regard the defendant’s excuse as reasonable, the judge must leave the matter for the jury to decide. When   doing so, if appropriate, the judge may indicate factors in the particular case which the jury might find useful when considering the issue – such as the defendant’s age, his background, his associates, his way of life, the precise circumstances in which he collected or recorded the information, and the length of time for which he possessed it.” As to the argument that an over-zealous use of section 58 by the police and prosecution could exacerbate rather than reduce the threat of terrorism, the House of Lords observed that, while prosecutors were very familiar with the need to exercise a wise discretion in deciding whether taking proceedings would ultimately be in the public interest, in section 58 Parliament had enacted the safeguard that proceedings were not to be initiated without the consent of the Director of Public Prosecutions (paragraph 85): “This can be seen as an acknowledgment that the nature of these offences is such that not all contraventions of the provisions should be prosecuted. More positively, the need for this consent should help ensure that prosecutors do indeed give due consideration to the public interest and do not embark on prosecutions in cases which do not merit it.” Following the House of Lords’ judgment the applicant considered himself to be in the same position that he had been in prior to the Court of Appeal’s judgment in K . In particular, he considered that he had no means of knowing whether the jury would find his reasons for possession to be reasonable. Accordingly, on 20 April 2009, the applicant sought a further indication of sentence in order to decide whether to once more change his plea to guilty. The indication given by a different trial judge was of a maximum of four and a half years’ imprisonment. In light of the fact that this would mean a virtually immediate release, rather than an uncertain trial after which he might receive a much longer sentence, the applicant pleaded guilty to the charges. He was sentenced to three years and nine months’ imprisonment. He completed his sentence on 8 May 2009 and was deported to Gambia on 15 May 2009. B. Relevant domestic law and practice 1. Relevant provisions of the Terrorism Act 2000 Section 58 provides as follows: “ Collection of information .   (1) A person commits an offence if— (a) he collects or makes a record of information of a kind 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. (2) In this section “record” includes a photographic or electronic record. (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. (4) A person guilty of an offence under this section shall be liable— (a) on conviction on indictment, to imprisonment for a term not exceeding 10 years, to a fine or to both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both. Section 118 of the Act provides that, if the defendant adduces evidence which is sufficient to raise the issue of a defence of “reasonable excuse”, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. 2. Goodyear indications of sentence In R v. Goodyear [2005] 1 W.L.R. 2532, the Court of Appeal set out the procedure to be followed when a defendant, during the course of criminal proceedings against him, asks the judge for an indication of the maximum sentence he would receive upon a plea of guilty. Any advance indication of sentence to be given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought. Where appropriate, there must be an agreed, written basis of plea between the defence and prosecution. Where there is a dispute about a particular fact which counsel for the defendant believes to be effectively immaterial to the sentencing decision, the difference should be recorded, so that the judge can make up his own mind. The judge should never be invited to give an indication on the basis of what would be, or what would appear to be, a “plea bargain”. Whenever an indication of sentence is sought, the defendant’s representative should advise the defendant that he should change his plea to guilty only if he accepts that he is guilty. The defendant should also be informed that the sentence could be increased on appeal by means of an Attorney-General’s reference, if the sentence was considered to be unduly lenient. The representative must also make clear that any indication given by the judge reflects the situation at the time when it is given, and that if a guilty plea is not tendered in the light of that indication the indication ceases to have effect. Prosecution counsel should, inter alia , draw the judge’s attention to any minimum or mandatory statutory sentencing requirements and avoid saying anything that may create the impression that the sentence indication has the support or approval of the Crown. COMPLAINTS The applicant complained that section 58 of the Terrorism Act was so vaguely framed that it violated Article 7 of the Convention. He submitted that, at the time of his arrest (and even now), there was no means of knowing whether one had a reasonable excuse for possessing the information proscribed by section 58(1). This was not clarified by the House of Lords ruling in his case. The effect of that ruling was that, unless possession was for an illegal purpose (in which case the jury would be directed that the purpose could not be a reasonable excuse), the issue was entirely a matter for the jury’s subjective view of what was reasonable. Different juries could take different views of what was reasonable and, because no reasons were given for juries’ verdicts, the law would never be clarified. This was further complicated by the ability of the prosecution to challenge both the truthfulness of the excuse for possession of the material and whether the excuse was reasonable. For the same reason, the applicant also complained under Article 10 of the Convention that his conviction was not “prescribed by law” for the purposes of Article 10 § 2 and, moreover, constituted a disproportionate interference with his right to freedom of expression as guaranteed by that Article. He submitted that the House of Lords was wrong to rely on the existence of prosecutorial discretion (paragraph 85 of its ruling); he relied on the United States Supreme Court case of Grayned v. City of Rockford 408 US 104 (1972), which expressly rejected the idea that the executive could mitigate the operation of an excessively wide legal provision. THE LAW Article 7 of the Convention, where relevant, provides as follows: “1.   No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” Article 10 of the Convention, provides: “1.   Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The Article 7 complaint The requirements of Article 7 of the Convention were recently set out by the Grand Chamber in Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR   2010 ‑ ..., where it stated: “The guarantee enshrined in Article 7, an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable. When speaking of ‘law’, Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law and which implies qualitative requirements, notably those of accessibility and foreseeability. As regards foreseeability in particular, the Court recalls that however clearly drafted a legal provision may be in any system of law including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in certain Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen ( Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 II; K.-H.W. v.   Germany [GC], no. 37201/97, § 85, ECHR 2001 II (extracts); Jorgic v. Germany , no. 74613/01, §§ 101-109, 12 July 2007; and Korbely v. Hungary [GC], no. 9174/02, §§ 69-71, 19 September 2008).” In light of these principles, the Court does not consider that section 58(3) gave rise to a violation of Article 7 in the applicant’s case. The Court recognises that, at the time of the applicant’s arrest, there was little guidance as to the meaning of “reasonable excuse” in section 58(3). This was no doubt because, at the time of his arrest, the offence set out in section 58 was a relatively new one. However, when new offences are created by legislation, there will always be an element of uncertainty as to the meaning of that legislation until it is interpreted and applied by the criminal courts. The House of Lords’ ruling in the applicant’s case was fully and clearly reasoned. It substantially clarified both what the prosecution had to prove under section 58(1) and the scope of the “reasonable excuse” defence under section 58(3). While it may have been less favourable to the applicant than the Court of Appeal’s ruling in K , it is not less clear than K . The House of Lords’ ruling also made it entirely foreseeable as to how any trial for a section 58 offence would proceed. The example given at paragraph 69 of the ruling (quoted above) made clear that first, it was for the prosecution to prove beyond reasonable doubt that the elements of the offences were present. Then, if the defendant adduced evidence capable of amounting to a reasonable excuse, it was for the prosecution to prove beyond reasonable doubt that the defence was not satisfied. Contrary to the applicant’s submission, the Court does not find that the operation of section 58(3) was rendered less foreseeable by the fact that the prosecution could challenge both the truthfulness of the defendant’s excuse for possession of the material and whether the excuse was reasonable, particularly when the burden of proving that a defence was not reasonable lay with the prosecution. Just as importantly, at the time of the applicant’s arrest, the concept of a “reasonable excuse” was not new under English law. As the House of Lords observed, the “reasonable excuse” defence could be found in other English statutes, such as the possession of an offensive weapon or failure to provide a blood or urine sample in road traffic cases. Its ruling applied substantially the same approach to section 58(3) as had previously been taken in those contexts. This was an entirely foreseeable and, indeed, logical interpretation of section 58(3). The Court accepts that the effect of the House of Lords’ ruling may well be that, in the majority of cases, the issue of a reasonable excuse was for the jury to determine. However, the fact that it is for a jury to apply the criminal law to the facts of the case before them does not mean the effect of the law is unforeseeable. Conferring a discretion on a jury is not in itself inconsistent with the requirements of the Convention, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity (see O’Carroll v. the United Kingdom (dec.), no. 35557/03, 15 March 2005). This is no less true for the concept of reasonableness. In   any criminal justice system based on trial by jury many defences are left for the jury to decide. Frequently, those defences involve an assessment of reasonableness, such as whether reasonable force has been used in self ‑ defence. In any such case, any uncertainty is considerably lessened by the fact that the jury will have the benefit of full submissions from prosecution and defence counsel and the directions contained in the trial judge’s summing up. Indeed the House of Lords’ ruling in the applicant’s case gave clear directions as to the factors which a trial judge could indicate to a jury in considering the issue of “reasonable excuse” under section 58(3) (see   paragraph 81 of the ruling, quoted above). These factors provide full and appropriate guidance as to the scope of the jury’s discretion under section 58(3) and how that discretion should be exercised. Finally, there is a difference between not knowing what may constitute a reasonable excuse and not knowing whether a jury will regard a particular excuse as reasonable. The Court considers that, despite his submissions, the applicant’s case fell into the latter category. As a matter of tactics, it may have been wise for him to plead guilty in order to avoid the uncertainties of a trial but that does not mean that, as a matter of law, the offence with which he was convicted was unforeseeable. It was not, therefore, incompatible with Article 7 of the Convention. For these reasons, the Court considers that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. B. The Article 10 complaint The Court considers that this complaint is also manifestly ill-founded. Even assuming that there was an interference with the applicant’s Article 10 rights, it was justified under Article 10 § 2. For substantially the same reasons given in respect of Article 7 above, any interference was prescribed by law. It was clearly justified by the legitimate aims of the interests of national security and the prevention and disorder of crime. It was also necessary in a democratic society, particularly when section 58 did not criminalise in a blanket manner the collection or possession of material likely to be useful to a person committing or preparing an act of terrorism; it only criminalised collection or possession of that material without a reasonable excuse. In the Court’s view, this is an entirely fair balance to strike. Consequently, this complaint must be also rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.     Fatoş Aracı   Lech Garlicki     Deputy Registrar   President