Introduction

The case of Dunleavy, R. v. (Rev 2) ([2021] EWCA Crim 39) was adjudicated in the England and Wales Court of Appeal (Criminal Division) on January 21, 2021. The applicant, Mr. Dunleavy, faced multiple charges under the Terrorism Act 2006 and Terrorism Act 2000. Specifically, he was charged with preparing terrorist acts, possessing documents of use to terrorists, and other related offences. The core issues revolved around the admissibility of psychological evidence pertaining to his diagnosis of Autism Spectrum Disorder (ASD) and whether his possession of certain materials could be justified under the defence of a "reasonable excuse."

Summary of the Judgment

The Court of Appeal upheld the decisions of the lower courts, dismissing Mr. Dunleavy's applications for leave to appeal his convictions on counts 2 to 10 and count 1. The appeals centered on two primary grounds:

• The admissibility of Dr. Lambert-Simpson's psychological report, which suggested Mr. Dunleavy's actions were influenced by his ASD.
• The withdrawal of the defence of "reasonable excuse" under section 58(3) of the Terrorism Act 2000.

The appellate court affirmed that the expert evidence was too general and not sufficiently tailored to Mr. Dunleavy's specific circumstances to be admissible. Additionally, the court upheld the lower judges' decisions that Mr. Dunleavy could not reasonably claim an excuse for possessing materials likely useful for committing terrorist acts.

Analysis

Precedents Cited

The judgment extensively referenced several key cases to support its stance on the defence of "reasonable excuse" and the admissibility of expert evidence:

• R v G; R v J [2009] UKHL 13; This case emphasized the necessity for a "reasonable excuse" to be objectively justified and not merely based on the defendant's intentions.
• R v Turner (Terence) [1975] QB 834; Highlighted the criteria for admissible expert opinion, notably its relevance and necessity beyond common knowledge.
• R v Flint and Holmes [2020] EWCA Crim 1266; Clarified the limits of lawful object defences, particularly when involving materials with obvious risks.
• R v Leslie Joseph Carr [2000] 2 Cr. App. R. 149 and R v Giannetto (1997) 1 Cr App R 1; These cases were analyzed to determine the necessity and scope of jury unanimity in establishing intent.

These precedents collectively reinforced the court's position that defenses based on personal mental health conditions must be substantiated with specific, relevant evidence directly pertaining to the case at hand.

Legal Reasoning

The court meticulously analyzed the admissibility of Dr. Lambert-Simpson's report, determining that it lacked the necessary specific correlation to Mr. Dunleavy’s actions. The report was deemed too general, merely outlining common characteristics of ASD without linking them directly to the applicant’s conduct or intentions. Consequently, it did not fulfill the criteria set out in the Criminal Procedures Rules, specifically regarding the necessity and reliability of expert evidence.

Regarding the defence of "reasonable excuse," the court referenced R v G to assert that such a defence requires an objective evaluation of the circumstances, which, in this case, unequivocally did not support the applicant's claims. The possession of documents with potential terrorist utility, combined with the intent to distribute them within extremist forums, negated any plausible excuse.

Furthermore, the court addressed the issue of jury unanimity in determining intent. It clarified that the jury needed to be unanimous in finding that the defendant had either the intent to commit terrorism or to assist others in doing so. The defense's attempt to split intent across different jury members did not align with judicial standards established in previous rulings.

Impact

This judgment solidifies the stringent application of the "reasonable excuse" defence in terrorism-related offences. It underscores the necessity for expert evidence to be directly pertinent and specifically applicable to the defendant's behavior and intentions. Future cases will likely follow this precedent, requiring more rigorous justification for mental health defences in the context of terrorism charges.

Moreover, the decision clarifies the requirements for jury unanimity regarding intent, ensuring that all jurors must agree on the defendant's specific intent to either commit or assist in terrorist acts. This clarity is expected to streamline jury instructions and reduce ambiguity in deliberations.

Complex Concepts Simplified

Section 58(3) Terrorism Act 2000: Reasonable Excuse

Definition: Under section 58(3) of the Terrorism Act 2000, an individual charged with possessing information or documents likely useful for committing terrorism can defend themselves by proving that they had a "reasonable excuse" for their actions.

Application: The defence must demonstrate that their possession of such materials was justified under specific circumstances, such as academic research or journalism, and not for facilitating terrorist activities.

Theory of Mind

Definition: "Theory of Mind" refers to the cognitive ability to understand that others have beliefs, desires, intentions, and perspectives different from one's own.

Relevance in the Case: The defence attempted to argue that Mr. Dunleavy's ASD impaired his Theory of Mind, affecting his understanding of others' intentions and thereby justifying his possession and sharing of extremist materials.

Admissibility of Expert Evidence

Criteria: For expert evidence to be admissible in court, it must be:

• Relevant to a matter in issue in the proceedings.
• Necessary to provide information beyond the court's common knowledge.
• Presented by a competent expert with appropriate qualifications.

In this case, the court found that the psychological report was too general and did not meet these criteria, thus ruling it inadmissible.

Conclusion

The Court of Appeal's decision in Dunleavy, R. v. (Rev 2) [2021] EWCA Crim 39 reinforces the stringent requirements for invoking the defence of "reasonable excuse" in terrorism-related offences. It emphasizes the necessity for expert evidence to be both specific and directly relevant to the defendant's actions and mental state. Additionally, the judgment clarifies the requirements for jury unanimity concerning a defendant's intent, ensuring that all jurors must agree on whether the intent was to commit terrorism or to assist others in doing so. The ruling serves as a pivotal reference for future cases, delineating the boundaries of mental health defences and the admissibility of expert testimony in the context of national security and terrorism legislation.