JOBE v. THE UNITED KINGDOM
Inadmissible
Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
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. 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.” “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. 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. 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.