On his return to the UK after fighting with Kurdish forces against Islamic State, Joshua Walker was detained at Gatwick Airport and after being found to be in possession of the Anarchist’s Cookbook Walker was prosecuted for section 58 Terrorism Act 2000, even though a person can purchase the item form Amazon. On Thursday 26th October 2017 the jury at Birmingham Crown Court took three hours to deliberate on their verdict, where they found Walker to be not guilty of the offence. Section 58 has raised a degree of controversy.
Section 58 Terrorism Act 2000 provides investigators with a wide power. It is wide because a person merely has to collect or make a record of information that is likely to be useful to a person involved in terrorist activity. What has to be ascertained is the type of article section 58 is referring to. The question is if it includes what would be considered innocuous items such as a train timetable or a map of a city centre with certain locations highlighted or items downloaded from the internet for personal interest. It is worth noting that under section 58 investigators do not require reasonable suspicion the article is for a purpose connected to terrorist activity. In effect, under section 58 the burden of proof is not placed on the prosecution but on potential defendants who have to prove they had a reasonable excuse for their possession of the article.
As a result there have been a number of legal challenges as to what amounts to an article for the purposes of section 58. In R v K (2008) the Court of Appeal held that section 58 was never intended to criminalise the possession of theological or propagandist material adding that:
‘A document or record will only fall within section 58 if it is of the kind that is likely to provide practical assistance to a person committing or preparing an act of terrorism. A document that simply encourages the commission of acts of terrorism does not fall within section 58’.
In R v G, R v J (2009) the House of Lords examined section 58 and, building on the K judgement, the House held that for a conviction under section 58 it is a requirement that the defendant not only possessed the document that may be of use to a terrorist, but they must also be aware of the nature of the information contained therein. The House stressed that this did not mean the prosecution had to show that the defendant knew all the details contained in the document, only that the defendant knew of the nature of the material it contained. The Court held for a person to be convicted under section 58 the prosecution must prove the defendant:
1. Had control of the record which contained information that was likely to provide practical assistance to a terrorist;
2. Knew that he had the record; and
3. Knew the kind of information which it contained.
J challenged this decision and the case went to the European Court of Human Rights (ECtHR) where the case was Jobe v UK (2011) J claimed that section 58 violated article 7 European Convention on Human Rights (ECHR) where there can be no punishment without law. The premise of J’s claim was that section 58 was so vague it was not law and if the court agreed with this argument, his article 10 ECHR rights (freedom of expression) was also violated because section 58 would not be deemed to be an act prescribed by law. The ECtHR held there was no violation of article 7 and stated the House of Lords decision was fully and clearly reasoned. Key to the ECtHR reaching this decision was the guidance the House of Lords gave in their decision regarding the three points cited above that have to be proved for a conviction under section 58 to stand. Likewise the ECtHR found there to be no violation of article 10 saying it was justified under the legitimate aims of the interests of national security and that it did not criminalise in a blanket manner the collection or possession of material likely to be useful to a terrorist.
I cover this and other statutory preventative measures in the UK, US, Australia and Canada in my forthcoming book ‘Terrorism: Law and Policy’ that will be published by Routledge in March 2018. For a more in-depth analysis of Walker’s case you can listen to my interview with BBC Radio Scotland from Friday 27th October 2017 that is 55 minutes 28 seconds in.