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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Muhammed v R [2010] EWCA Crim 227 (19 February 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/227.html Cite as: [2010] EWCA Crim 227, [2010] 3 All ER 759

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IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
HHJ PONTIUS
T20077448/7449

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2010

LORD JUSTICE HOOPER:

1. On 18^thAugust 2008 in the Crown Court at Blackfriars (H.H.J. Pontius) the appellant was convicted of possessing an article for a purpose connected with terrorism (counts, 5, 6 and 7) contrary to s.57(1) of the Terrorism Act 2000 and making a record of information likely to be useful in terrorism (count 8) contrary to section 58(1) of the same Act. Following an appeal against his sentence on counts 5, 6 and 7, his sentence on those counts was set at eight years imprisonment concurrent on each count.
2. He appeals with the leave of the Full Court against his conviction on count 8 only and, if that appeal fails, he appeals the concurrent sentence of four years' imprisonment concurrent ([2009] EWCA Crim 2653).
3. Count 8 alleged that on a date before 23 November 2005 the Defendant made a record of information, namely a file entitled "Draft Ideas" "of a kind likely to be useful to a person committing or preparing an act of terrorism", contrary to section 58 (1) of the Terrorism Act 2000.
4. The co-accused Aabid Khan was convicted of possessing an article for a purpose connected with terrorism (counts 1, 3 and 4). He was sentenced to 12 years imprisonment less 795 days on remand. His appeal against sentence was dismissed.
5. On 6^th June 2006 Khan was stopped at Manchester International Airport having just arrived on a flight from Pakistan. He was found to be in possession of two computer hard drives and a collection of compact discs. He had amassed a vast collection of terrorist related documentation within the hard drive and CD's. He was also said to be have been responsible for a number of other CD's found in the appellant's home. The collection of materials was said to have been the largest of its type and included thousands of documents relating to terrorist propaganda and also a mass of material relating to practical utility items, such as instructions on bomb making, improvised explosives, firearms, poisons and the like.
6. The hard drive and CD's also revealed details of Khan's connection to the administration of an extremist website, At-Tibyaan, and to hundreds of MSN conversations he had had with regard to such topics as jihad, suicide attacks, and training in military camps in Pakistan. Khan was the principal amongst the four accused who went on trial and Muhammed was alleged to have been his 'right hand man'.
7. Whilst the prosecution could not point to a particular settled plan or intended settled target it was their case that the articles were possessed with an intention that they were to be used for terrorist purposes at some stage in the future. Khan accepted he was in possession of the articles, which were the subject of the three counts upon which he was convicted.
8. The appellant Muhammed was a cousin of and close friend of Khan. Their families came from the same village in the Attock region of the North West Frontier of Pakistan. Muhammed's adherence to the cause of Al Qaida was said to be demonstrated by his own collection of Al Qaida propaganda material found on his desk in his bedroom, including videos that promoted the virtues of suffering and dying for their religion, of roadside bomb attacks, suicide bomb attacks, beheadings of hostages, and videos that glorified the 9/11 attacks and the London bombings; audio material that extolled the virtues of jihad and martyrdom; and practical utility material relating to making and using weapons, explosives and poisons. In January 2005 Khan and Muhammed travelled to the Woolwich area of London together, where they met the co-defendant Ahmed Sulieman (acquitted at trial) and others who were later to be found to be in possession of extremist propaganda material. In March 2005, Khan travelled to Canada. Muhammed went to London with him when he bought his flight ticket, and met him in London on his return. Muhammed paid for Khan's coach tickets on each occasion. He also paid for Khan to travel to Oldham and to Birmingham in November 2005.
9. Muhammed was in Pakistan from June to September 2005 at the same time as Khan. At some time before they each went he and Khan bought a replica Kalashnikov rifle, paid for by Muhammed. Khan bought a second Kalshnikov rifle, this time a deactivated one, before he went to Pakistan. There was extensive telephone contact between Khan and Muhammed in November and December 2005, up to the time of Khan's departure to Pakistan in January 2006. There was further contact between them, whether by phone or computer or both (the means was not identified by the police) when Khan was in Pakistan. After Khan had gone to Pakistan Muhammed was in contact with the co-accused, Munshi, a 16 year old boy convicted of an offence contrary to section 58 of the Terrorism Act 2000.
10. Muhammed also sent Khan a document, created by Munshi, that provided practical information about how to make Napalm, and how to make a gun, a detonator, a time bomb, and about high and low explosives, and about guerrilla warfare. Khan copied that document onto a disc and took it with him when he went to Pakistan in January 2006. MSN chat between Khan and Muhammed in November 2005 showed their involvement together in an attempt to obtain 5 litres of acetone, a highly inflammable substance that featured in a large number of the recipes for home-made explosives that they had in their possession.
11. Before Khan went to Pakistan in January 2006 he left with Muhammed for safekeeping a collection of practical utility manuals about making and using weapons and explosives, together with five maps of the London Underground transport network, a plan of Brooklyn bridge and Lower Manhattan, and a large number of DVDs that contained violent extremist propaganda glorifying jihad and martyrdom, as well as further practical utility material. This included a further copy of the video showing how to make a suicide bomber's vest. Muhammed's fingerprints were on some of the manuals.
12. Khan also left an encryption code that was found in Muhammed's bedroom, for the purpose of covert email contact. While Khan was in Pakistan Muhammed obtained for him a computer memory drive, onto which he downloaded a vast amount of practical utility material relating to making and using weapons and explosives that replicated material that was on Khan's other hard drive. He then sent the memory drive to Khan in Pakistan.
13. Even before Khan had been arrested at Manchester airport, and while Khan was still being searched, Muhammed looked up a website that provided advice to Muslims who have been arrested on suspicion of involvement in terrorist offences. He then fled and laid low for ten days, reappearing in London having changed his appearance by shaving off his beard and having with him £1265 cash for his escape from this country. It was said that this response to Khan's detention proved his knowledge of Khan's terrorist activities and the nature of the material he had in his possession.
14. Muhammed gave no comment responses to all questions put to him in interview after his arrest.
15. We turn to count 8 which concerned a document entitled "Draft Ideas", created in November 2005 by Khan and Muhammed together over the internet. The passages in brackets were inserted by Khan.
16. The document reads as follows:

DRAFT IDEAS

Mobile/Cell

Have a spare mobile/cell with a separate simcard and only give it to certain or close people.

Use sim cards registered on somebody else's details. (NOTE: You can also use operators that don't require registerating.)

Try use a Nokia 402n or older, this does not have GPRS and there for you are harder to track

Try using your phone outside a certain radius i.e. half a mile or a mile from your house (NOTE: is this certain radius and why do we use it out of this radius and what benefits)

Try avoiding using Islamic words on the phone e.g. jihad, insha'allaah, irhabi etc one of the reason is the phone systems have or are going to have tunnel systems were certain words go back to the operator… more details follow.

E-mail:

Never use email registered on your details… the kuffar linked a sister of one the tel aviv bombers: she had encouraged him email where sent from there home computer and also there details.

Avoid using j-related e mail from your house. (NOTE: Utilise non-home i.e. private flat connection or secure proxy in the least)

A method of email communication is saving comments in the draft folders. (NOTE: The email account used should be changed every so often and promptly in emergency and specific words and plans avoided)

Try have coded words. (NOTE: Best to agree about them offline and passwords agreed offline)

The authorities:

Be smart

Think that you being watched all the time… that way you think and are aware of what you are doing (also reminder the brothers) (NOTE: Dress sensibly to avoid detection, i.e. no military pants and large pagree in middle of London etc)

More details to follow… I will check Islamic awakening article "know your rights" applies to UK Muslims

The brother(s):

Books to read… fazial e jihad, army of medina (NOTE: Tibyaan books have been written to pin point nencessity and read history of islaamic battles and personalities and times of prophets and sahaabahs may Allaah be pleased with them all, and the phase of the prophet sallaahu 'alayhi wasallam.)

More to follow

Sisters:

Weather it be sister wife daughter mother auntie try get the sisters involved… they also have a role. (NOTE: They can be taught thing such as first aid, weapons and then they in turn teach other women secretly and they can be encouraged from examples in history like hawaa barayeb rahimahullaah or summayyah radiyallaahu anha the first martyr or umm ammarrah radiyallaahu anha the prophet sallaahu 'alayhi wasallam's shield in a battle)

Communication with sister should be done via husband brother etc because of the fitnah of today.

17. There was then a list of suggested reading.
18. Much of the material in this document, consisting as it does of advice on concealing information from others, could be of use to any would be criminal or indeed perhaps to a philandering spouse. Mr Michael Harrison QC wrote in his skeleton argument:

Nothing in the content related to the furtherance of the commission or preparation of any act of terrorism. Taken at its highest, the most the document amounted to was suggestions on page 1 about avoidance of surveillance or detection – but not in the context of the commission of any act of terrorism or preparation for any such act.

19. Whilst this comment may not be true of the passages which for example referred to not using words like "jihad" and to getting the sisters involved, it is certainly true of most of the document. Given that the judge left it to the jury to decide whether the offence was committed in relation to any part of the document, we concentrated, in the course of argument, on the first four paragraphs, which we repeat:

Have a spare mobile/cell with a separate simcard and only give it to certain or close people.

Use sim cards registered on somebody else's details. (NOTE: You can also use operators that don't require registerating.)

Try use a Nokia 402n or older, this does not have GPRS and there for you are harder to track

Try using your phone outside a certain radius i.e. half a mile or a mile from your house (NOTE: is this certain radius and why do we use it out of this radius and what benefits)

20. Mr Denison QC submitted that the jury were entitled to convict the appellant of an offence against section 58(1) in respect of any of these first four paragraphs (as well, of course, of what was written in the balance of the document).
21. These four paragraphs on their own have nothing to do specifically with terrorism and, so Mr Harrison submits are "not enough to bring the content of the document within the meaning of 'information' in the section."
22. We turn to the provisions of section 58.
23. Section 58 provides:

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.

...

24. In so far as sub-section (3) is concerned, by virtue of section 118 (2),

If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

25. The provisions of section 58 were examined in detail in R v G and R v J [2009] UKHL 13; [2009] 2 WLR 724; [2009] 2 Cr App R 4. Lord Rodger giving the opinion of the Committee said in relation to section 58 (1)(b)

50. ... 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).

26. That applies to section 58 (1) (a) with the necessary changes in wording.
27. Lord Rodger gave guidance on what categories of information are likely to provide practical assistance to a person committing or preparing an act of terrorism. He said:

42. Obviously, on one reading, section 58(1) could cover a multitude of records of everyday common or garden information, which might actually be useful to a person who was preparing to carry out an act of terrorism - eg  a Yellow Pages directory listing outlets where he could buy fertiliser and other chemicals for making into a bomb, a timetable from which he could discover the times of trains to take him to the city where he was going to plant his bomb, or an A to Z directory of that city which he could use to find his way to the target. But, rightly, appearing for the Crown, Mr Perry QC repudiated any such interpretation. Parliament cannot have intended to criminalise the possession of information of a kind which is useful to people for all sorts of everyday purposes and which many members of the public regularly obtain or use, simply because that information could also be useful to someone who was preparing an act of terrorism.

43. Indeed, it is clear from what Lord Lloyd said in his report that the aim was to catch the possession of information which would typically be of use to terrorists, as opposed to ordinary members of the population. So, to fall within the section, the information must, of its very nature, be designed to provide practical assistance to a person committing or preparing an act or terrorism. Because that is its nature, section 58(3) requires someone who collects, records or possesses the information to show that he had a reasonable excuse for doing so. The information is such as "calls for an explanation", as Lord Phillips of Worth Matravers LCJ, said in R v K [2008] 2 WLR 1026, 1031, para 14. Of course, it is not necessary that the information should be useful only to a person committing etc an act of terrorism. For instance, information on where to obtain explosives is capable of falling within section 58(1), even though an ordinary crook planning a bank robbery might also find it useful. (Underlining added)

28. The underlined words in this passage bear some similarity with what Lord Phillips CJ said in K v R [2008] EWCA Crim 185; [2008] 2 WLR 1026; [2008] 2 Cr App when identifying the categories of documents which are likely to provide practical assistance to a person committing or preparing an act of terrorism. He said:

14. ... The natural meaning of that section requires that a document or record that infringes it must contain information of such a nature as to raise a reasonable suspicion that it is intended to be used to assist in the preparation or commission of an act of terrorism. It must be information that calls for an explanation. Thus the section places on the person possessing it the obligation to provide a reasonable excuse. (Underlining added)

29. In so far as Lord Phillips was saying in this passage that the document must contain information of such a nature as to raise a reasonable suspicion that it is intended to be used to assist in the preparation or commission of an act of terrorism, that is probably no longer good law because of what the House of Lords was to say about the reasonable excuse defence, to which we return shortly.
30. In order to decide whether a particular document contains information of a kind likely to be useful to a person committing or preparing an act of terrorism, the information, in Lord Rodger's words "must, of its very nature, be designed to provide practical assistance to a person committing or preparing an act or terrorism" and not merely to ordinary members of the public. It seems clear that Lord Rodger did not mean, when he used the word "designed", that the maker of the document or record had in his mind that he was providing practical assistance to a person committing or preparing an act of terrorism. Later in the opinion he took the example of "an aspiring cracksman who attends an academy for safe-blowers" and who "takes notes on how to make explosives, and keeps his notes in order to use the information to break open a bank vault." Lord Rodger said of this information (in paragraph 78):

By its nature, the information in the notes would be capable of falling within the scope of section 58(1).

Lord Rodger also gave the example of a burglar being in possession of a document containing information about the security system protecting the Home Secretary's residence in order to burgle her house and steal her jewellery (see paragraph 77). Although Lord Rodger was giving this example in the context of his examination of the defence of reasonable excuse, it must follow that he was of the view that such information was, of its very nature, designed to provide practical assistance to a person committing or preparing an act or terrorism. It would not seem to matter that the document containing the information had been designed for a legitimate purpose by the installer of the security system.

31. Lord Rodger gave further guidance, in paragraph 43, on the categories of information likely to provide practical assistance to a person committing or preparing an act of terrorism, when he said that the information must be such as "calls for an explanation" pursuant to section 58 (3). Documents of every day use to ordinary members of the public such as the Yellow pages, a published timetable, an A-Z, a published map of the London Underground would not be documents which call for an explanation and thus are not to be treated as containing information of a kind likely to be useful to a person committing or preparing an act of terrorism.
32. Lord Rodger went on to say that:

45. Interpreted in that way, section 58(1) would cover, for instance, a training manual about making or planting bombs or explosives, or a document containing information about how to get unauthorised entry to military establishments, government offices etc. It would also cover information, whether in the form of an electronic key or otherwise, which enabled a potential terrorist to obtain access to such information. ...

33. Mr Denison submitted that the Draft Ideas document clearly contained information of a kind likely to be useful to a person committing or preparing an act of terrorism, for example "field craft" techniques designed to avoid surveillance and detection.
34. Mr Harrison submitted that in giving these examples of the kind of information which could fall within 58(1), Lord Rodger was impliedly excluding information of the kind in the Draft Ideas document. Mr Harrison referred to the items of information in G and J and pointed out, rightly, that they were of a significantly higher level of importance than Draft Ideas. Mr Harrison submitted that it could not be said that Draft Ideas was likely to be useful in the sense of furthering the actual commission or preparation of an "act of terrorism". Mr Harrison submitted that the section was aimed at the perpetration of an act of terrorism, not how, without detection, to get to the place where the act is to take place and not how to get away from it. As to this argument Mr Denison submitted that techniques to avoid detection and surveillance are very important in the early stages of preparing an act of terrorism as well as later stages and that Mr Harrison's submission would impose an unjustified restriction on the ambit of section 58.
35. Mr Harrison submitted that the phrase "information of a kind likely to be useful to a person committing or preparing an act of terrorism" should be interpreted narrowly in the light particularly of the fact that section 58 (1) (b) punishes mere possession and that it would be wrong to impose upon a person in possession of a document containing information of this kind, the obligation to provide a reasonable excuse.
36. Mr Harrison submitted that the information in the document is revealing no more than techniques to avoid detection which could be used by any criminal. As to this argument, we bear in mind, as Lord Rodger made clear:

43. ... Of course, it is not necessary that the information should be useful only to a person committing etc an act of terrorism. For instance, information on where to obtain explosives is capable of falling within section 58(1), even though an ordinary crook planning a bank robbery might also find it useful.

37. Mr Harrison also argued that giving a very wide interpretation of the phrase "information of a kind likely to be useful to a person committing or preparing an act of terrorism" would create uncertainty as to what is caught by section 58(1)(a) and (b) and leave the prosecuting authorities with far too wide a discretion in deciding whether to take action or not.
38. Before resolving these arguments, we shall complete our examination of section 58.
39. We turn to the issue of extrinsic evidence: "Can extrinsic evidence be called to show that, in the hands of a particular defendant, a document in every day use, such as a published timetable, contains information of a kind likely to be useful to a person committing or preparing an act of terrorism?" Lord Rodger, in this respect adopting what had been decided in K v. R, said that the use that may be made of extrinsic evidence to prove that a document is likely to provide practical assistance to a person committing or preparing an act of terrorism is limited.

44. The role of extrinsic evidence is limited. It can be used to explain to the jury the significance of something in the document, say, a chemical formula, in connection with the planning of an explosion. It can also be used to explain the true nature of the information in a document which has been prepared so as to appear innocuous but whose actual nature and contents are concealed by the use of some sort of code or equivalent device. But, since the document must contain information which is, of its very nature, likely to be useful to a potential terrorist, evidence cannot be led with the aim of showing that a document, such as a timetable, containing everyday information, should be treated as falling within section 58(1). ...

40. It follows that, in this case, extrinsic evidence is in very large measure inadmissible to prove that the information contained in the Draft Ideas document falls within section 58 (1) (it might be relevant to show who and in what circumstances the "martyrs" died). In particular the facts supporting the other counts of which the appellant was convicted were almost certainly irrelevant. There is, in any event, no complaint about the directions given by the judge to the jury.
41. When turning to section 58 (3). Lord Rodger held that the Court of Appeal Criminal Division were wrong in K [2008] EWCA Crim 185; [2008] 2 WLR 1026, 1031, in deciding:

As for the nature of a 'reasonable excuse', it seems to us that this is 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.

42. The correct interpretation is to be found in paragraphs 77-79 of the Opinion, to parts of which we have already referred:

77. ... 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.

78. In the course of the hearing, counsel conjured up other, more or less fanciful, scenarios which, again, smacked more of a student moot than of real life. For example, we were asked to contemplate the case of an aspiring cracksman who attends an academy for safe-blowers, takes notes on how to make explosives, and keeps his notes in order to use the information to break open a bank vault. By its nature, the information in the notes would be capable of falling within the scope of section 58(1). The suggestion was that the apprentice cracksman would have a reasonable excuse under section 58(3) for collecting, recording and possessing the information.

79. Of course, if accepted, the explanation would show that the accused's purpose was not to commit an act of terrorism. But that is not the issue under section 58. Under section 58(1), the mere fact that the defendant's purpose was not to commit an act of terrorism is neutral. What he has to show is that he had an objectively reasonable excuse for possessing something which Parliament has made it, prima facie, a crime for him to possess because of its potential utility to a terrorist. An intention to use information in connection with a bank robbery may well be an explanation of why the defendant had the information, but it cannot be a "reasonable" excuse for having it. So the accused would be guilty of the section 58(1) offence. (Underlining added).

43. Further guidance as to what may constitute a reasonable excuse is to be found in paragraph 81, in which reference is made to the argument of Mr Perry QC for the Crown that the defence should be construed narrowly, and in paragraph 83. In paragraph 81 Lord Rodger said that: "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."
44. Counsel for J argued before the appellate Committee that an over-zealous use of section 58 by the police and prosecuting authorities could alienate young people and exacerbate rather than reduce the threat of terrorism in this country. To this argument Lord Rodger responded:

85. ... That may well be so. But prosecutors are very familiar with the need to exercise a wise discretion in deciding whether taking proceedings would ultimately be in the public interest. Sexual offences where both parties are under age and both consent are, perhaps, the most obvious example. In the case of sections 57 and 58, however, Parliament has enacted the safeguard that proceedings are not to be initiated without the consent of the Director of Public Prosecutions: section 117(2)(a). 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.

45. It may well be that Lord Rodger, in referring to the exercise by prosecutors of the discretion to prosecute in sexual cases, had in mind G [2008] UKHL 37; [2009] 1 AC 92; [2009] 1 Cr App R 8, in which Baroness Hale said:

48. ... There was a great deal of anxiety in Parliament about criminalising precocious sexual activity between children. The offences covered by section 13 [of the Sexual Offences Act 2003] in combination with section 9 cover any sort of sexual touching however mild and however truly consensual. [E.g. a thirteen year old girl or boy sexually kissing a twelve year old]. As sexual touching is usually a mutual activity, both the children involved might in theory be prosecuted. Indeed, section 9 expressly contemplates that the person penetrated may be the offender. Obviously, therefore, there will be wide variations in the blameworthiness of the behaviour caught by sections 9 and 13. Both prosecutors and sentencers will have to make careful judgments about who should be prosecuted and what punishment, if any, is appropriate. In many cases, there will be no reason to take any official action at all. In others, protective action by the children's services, whether in respect of the perpetrator or the victim or both, may be more appropriate.

(Cf. K : [2001] UKHL 41; [2002] 1 AC 462; [2002] 1 Cr App R 13, paragraph 24, per Lord Bingham.)

46. It seems to us that Mr Harrison's submission about giving the prosecuting authorities too great a discretion cannot succeed in the light of what lord Rodger said in paragraph 85. Nor do we find persuasive his other submissions to the effect that a narrow construction should be given to the phrase "information of a kind likely to be useful to a person committing or preparing an act of terrorism". To try and draw distinctions between the various stages of preparation would bring an unnecessary and unjustified complication into cases under section 58. Nor does the fact that Draft Ideas may be useful to persons other than terrorists mean that it falls out with section 58. It cannot sensibly be said that Draft Ideas is information in every day use by ordinary members of the public.
47. Provided that the document containing the information is not one in every day use by ordinary members of the public (e.g. published timetables and maps) and provided that a reasonable jury could properly conclude that the document contains information of a kind likely to be useful to a person committing or preparing an act of terrorism, then it will be a matter for the jury whether they are sure that it contains such information. If so, and provided the defendant has the necessary mens rea, then the only issue will be whether the defendant has a reasonable excuse.
48. We give an example discussed in argument. Mr Denison agreed that a document containing the names and addresses of cabinet ministers not available to the general public could be a document containing information which was likely to provide practical assistance to a person committing or preparing an act of terrorism. It was agreed in argument before us that the fact that the document was kept in a secure place so that it would be unlikely that a would-be terrorist would find it, is not relevant. Thus, for example, a civil servant or journalist who knowingly possesses such information would be guilty of the offence unless he had a "reasonable excuse" for having the information. Whether or not the circumstances of the possession would be relevant (i.e. that the civil servant had the document containing the information on a train) has not, to our knowledge, been decided.
49. In conclusion we reject Mr Harrison's submissions and dismiss the appeal against conviction.
50. Mr Harrison submits that the sentence of four years' imprisonment for a document containing, in large measure, well known information is manifestly excessive. We agree. Although the length of the sentence is academic, we think the appropriate sentence for Count 8 on its own after a trial was two years' imprisonment. We bear in mind that Draft Ideas was created with terrorism in mind and not for other purposes. To that extent the appeal against sentence on count 8 succeeds.