R v Appellant

Factual and Procedural Background

Appellant was charged on an indictment containing five counts of dissemination of a terrorist publication contrary to section 2(1) of the Terrorism Act 2006. [Para 26] After a trial at the Crown Court at Kingston before Judge Lodder KC, he was convicted on all counts and, on 10 December 2024, sentenced to a total of seven years' imprisonment, made up of six years on each count to run concurrently together with a one-year extension period under section 278 of the Sentencing Act 2020. [Para 27] He appealed against both conviction and sentence with leave of the full court. [Para 28]

Legal Issues Presented

1. Whether the statutory defence in section 2(9) of the Terrorism Act 2006 was available on the facts of the case and should have been left to the jury. [Para 58][Para 61][Para 65]
2. Whether section 2(9) is confined to a particular class of persons, or is available more generally if its statutory requirements are met. [Para 61][Para 64][Para 146][Para 148]
3. Whether the conviction and sentence were unsafe because of the jury note and the uncertainty as to whether the verdicts rested on intention or recklessness. [Para 201][Para 203][Para 207]

Arguments of the Parties

Appellant's Arguments

• The section 2(9) defence was not textually limited to journalists, academics, or any other category, and the trial judge was wrong to restrict it. [Para 61]
• If the jury were considering recklessness, Appellant said he was entitled to rely on the statutory defence because the publications did not express his views and were shared only for discussion. [Para 61][Para 43]
• He relied on his own evidence, the evidence of recipients, and the limited extent of the prosecution's message evidence to say that he did not hold extremist views. [Para 43]

Respondent's Arguments

• The statute did not expressly restrict the defence, but comparable provisions, explanatory material, and parliamentary material showed that it was intended to protect legitimate dissemination by people such as broadcasters, librarians, and academics. [Para 64][Para 65][Para 139][Para 145][Para 146]
• Even if the defence existed in principle, there was no sufficient evidential basis for the objective second limb, so it should not have been left to the jury. [Para 65][Para 66]
• If the defence were available, both parties agreed there would be an evidential burden on the defence as to both limbs. [Para 66]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court held that nothing in the wording of section 2(9), or in the Explanatory Notes, limited the defence to a particular class of persons, and it declined to read such a limitation into the Act. [Para 121][Para 138][Para 146][Para 148] It accepted that parliamentary material showed a concern to protect legitimate dissemination by journalists, academics, librarians, and similar persons, but said that this did not narrow the statutory language. [Para 144][Para 145][Para 147]

The Court further held that section 2(9) contains two separate limbs, both of which must be satisfied, and that the second limb is an objective test asking whether it was clear in all the circumstances that the publication did not express the defendant’s views and did not have his endorsement. [Para 150][Para 152][Para 157][Para 158] It said that a defendant’s own denial of endorsement may be enough for limb (a), but will often be insufficient for limb (b) without further evidence. [Para 157][Para 158]

On burden of proof, the Court concluded that “to show” means “to prove” and therefore imposes a legal burden on the defendant. [Para 160][Para 161][Para 179] It found no unfairness under Article 6(2), relying on the prosecution’s continuing obligation to prove the offence, the public interest in prosecuting reckless dissemination of terrorist material, and the limited and fact-specific nature of the defence. [Para 180][Para 182][Para 186]

Applying that construction, the Court noted that the defence had not been raised until the jury note, had not been foreshadowed in the defence statement, and was not part of the agreed directions or route to verdict. [Para 194][Para 196] It concluded that there was no sufficient evidence to satisfy the objective second limb, so the trial judge was right not to leave the defence to the jury. [Para 197][Para 198][Para 199]

On sentence, the Court said the trial judge was entitled to decide the factual basis for sentence despite uncertainty about the jury’s reasoning, and was entitled to conclude that the appellant intended to encourage terrorism. [Para 202][Para 203][Para 207]

Holding and Implications

The appeal against conviction was refused and the appeal against sentence was dismissed. [Para 199][Para 207] The convictions and the seven-year sentence therefore remained in force. [Para 27][Para 199][Para 207] The judgment also clarified that section 2(9) is not restricted to a particular class of person, but the defendant must satisfy both limbs of the defence on the balance of probabilities. [Para 190][Para 191][Para 192]