R-v-K [2008] EWCA Crim 185

The Appellant faced 3 counts under s58. It was alleged that he had been in possession of a copy of the “Al Qaeda Training Manual,” a publication relating to the formation and organisation of “jihadist” movements, and a publication that argued that Muslims should work towards the establishment of an Islamic state.

The Appellant had argued, at a preparatory hearing, that the prosecution was an abuse of process, as s58 was incompatible with the ECHR because of lack of certainty, and that the provision was not intended to cover the kind of publications that formed the subject of counts 2 and 3. The trial judge had rejected these arguments and held that whether possession amounted to an offence depended on the circumstances and context of the possession.

The Court of Appeal held that s58 applied only to documents that provide practical assistance to a person preparing or committing an act of terrorism, and not those that might merely encourage. A document had to contain information of such a nature as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of a terrorist act.

Extrinsic evidence might be called to explain the nature of the information, or establish a defence of reasonable excuse for possession, but not to establish that an apparently innocent document was intended to be used for a terrorist purpose. The section did not fall foul of the doctrine or certainty.

To show “reasonable excuse” for possession, a defendant would need to show that the document or record was possessed for another purpose than to assist in the preparation or commission of an act of terrorism even if that purpose infringed any other provision of civil or criminal law.