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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 >> Da Costa, R. v [2009] EWCA Crim 482 (04 March 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/482.html Cite as: [2009] 2 Cr App Rep (S) 98, [2009] EWCA Crim 482, [2009] 2 Cr App R (S) 98

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4 March 2009

1. THE VICE PRESIDENT: The issues which these applicants for leave to appeal seek to raise relate to the proper construction of sections 6 and 8 of the Terrorism Act 2006 and their particular application to the facts of the present case.
2. Four defendants, Hamid, Da Costa, Ahmed and Al-Figari were convicted, after a trial lasting five months, of terrorist offences. In the barest outline, Hamid hosted weekly Friday meetings. At those meetings both he and a fifth defendant, Atilla Ahmet (to whom we shall refer as Atilla) habitually spoke. The meetings were habitually attended by, among others, the other three convicted defendants who were part of a close circle of associates around Hamid and Atilla. Hamid also organised a number of training trips. Before the ones which gave rise to convictions there had been some in Cumbria. There were then, relevant to the convictions, two in the New Forest and one at a paintball centre in Berkshire. Da Costa assisted in the organisation of one of the New Forest trips when Hamid, although present, was suffering from a bad back and unable to take an active physical part. Those training trips were attended by the other defendants and also by others either known or unknown.
3. Hamid was convicted of three counts of soliciting to murder. Those counts were based upon the content of his Friday teachings, in the course of which he encouraged murder. Atilla pleaded guilty to three similar counts, similarly based on teachings on those occasions. There is no complaint about Hamid's conviction for soliciting to murder.
4. Da Costa was convicted of one count of possessing information likely to be useful to a terrorist, contrary to section 58 of the Terrorism Act 2000. Al-Figari was convicted of two counts of the same offence. There is no complaint about any of those convictions either.
5. The proceedings before us have accordingly been confined to the remaining counts on the indictment which were framed under either section 6 or section 8 of the Terrorism Act 2006. In relation to those Hamid was convicted of three counts contrary to section 6 of providing training or instruction. Da Costa was convicted of one of those counts and then Da Costa, Ahmed and Al-Figari were each convicted of two counts of attending such training, contrary to section 8.
6. In broad outline section 6 creates offences both of terrorist training, under section 6(1), and also of receiving such training with the intention of using the skills in which the defendant is trained for terrorist purposes. The second of those offences is to be found in section 6(2). Section 8 creates a different offence which may be committed by those who attend such terrorist training. The counts in this indictment which alleged attendance at as distinct from provision of training were laid not under section 6(2) but under section 8.
7. The three questions which have been raised before us can shortly be stated as these. First, ought the judge to have added to his direction under section 6 as a result of a question asked by the jury in connection with the section 8 allegations after it had been in retirement for about a fortnight? Second, does section 8 create a lesser form of offence containing no requirement that the attender has the intention of putting the training to terrorist use or is a requirement that at least somebody present has the intention to put the training to terrorist use imported into section 8 from section 6? Third, is the concept of terrorist training as prohibited by section 6 and 8 so uncertain as to offend both the common law and the rule contained in article 7 of the European Convention on Human Rights so that it requires to be read down to narrow its scope? In particular, must it be read down in a manner which excludes from its scope fitness training?
8. Section 6 provides as follows:
9. "(1) A person commits an offence if—

(a) he provides instruction or training in any of the skills mentioned in subsection (3); and

(b) at the time he provides the instruction or training, he knows that a person receiving it intends to use the skills in which he is being instructed or trained—

(i) for or in connection with the commission or preparation of acts of terrorism or Convention offences; or

(ii) for assisting the commission or preparation by others of such acts or offences.

(2) A person commits an offence if—

(a) he receives instruction or training in any of the skills mentioned in subsection (3); and

(b) at the time of the instruction or training, he intends to use the skills in which he is being instructed or trained—

(i) for or in connection with the commission or preparation of acts of terrorism or Convention offences; or

(ii) for assisting the commission or preparation by others of such acts or offences.

(3) The skills are—

(a) the making, handling or use of a noxious substance, or of substances of a description of such substances;

(b) the use of any method or technique for doing anything else that is capable of being done for the purposes of terrorism, in connection with the commission or preparation of an act of terrorism or Convention offence or in connection with assisting the commission or preparation by another of such an act or offence; and

(c) the design or adaptation for the purposes of terrorism, or in connection with the commission or preparation of an act of terrorism or Convention offence, of any method or technique for doing anything.

(4) It is irrelevant for the purposes of subsections (1) and (2)—

(a) whether any instruction or training that is provided is provided to one or more particular persons or generally;

(b) whether the acts or offences in relation to which a person intends to use skills in which he is instructed or trained consist of one or more particular acts of terrorism or Convention offences, acts of terrorism or Convention offences of a particular description or acts of terrorism or Convention offences generally; and

(c) whether assistance that a person intends to provide to others is intended to be provided to one or more particular persons or to one or more persons whose identities are not yet known."

10. Section 8 provides as follows:

"(1) A person commits an offence if—

(a) he attends at any place, whether in the United Kingdom or elsewhere;

(b) while he is at that place, instruction or training of the type mentioned in section 6(1) of this Act or section 54(1) of the Terrorism Act 2000 (c. 11) (weapons training) is provided there;

(c) that instruction or training is provided there wholly or partly for purposes connected with the commission or preparation of acts of terrorism or Convention offences; and

(d) the requirements of subsection (2) are satisfied in relation to that person.

(2) The requirements of this subsection are satisfied in relation to a person if—

(a) he knows or believes that instruction or training is being provided there wholly or partly for purposes connected with the commission or preparation of acts of terrorism or Convention offences; or

(b) a person attending at that place throughout the period of that person's attendance could not reasonably have failed to understand that instruction or training was being provided there wholly or partly for such purposes.

(3) It is immaterial for the purposes of this section—

(a) whether the person concerned receives the instruction or training himself; and

(b) whether the instruction or training is provided for purposes connected with one or more particular acts of terrorism or Convention offences, acts of terrorism or Convention offences of a particular description or acts of terrorism or Convention offences generally."

11. We deal first with the submission in relation to section 6. This was a long trial. The judge was much assisted by experienced counsel on all sides. As we would expect, at a stage between the close of evidence and the making of final submissions the judge discussed with counsel what directions of law ought to be given. After no doubt a degree of discussion it was agreed that in relation to the counts contrary to section 6 of providing training for terrorism the judge should give the following direction:

"To prove the guilt of a defendant the prosecution must make you sure of the following matters. The defendant (i) provided instruction or training; (ii) in the use of any method or technique for doing something that is capable of being done for the purposes of terrorism or the preparation of an act of terrorism, (iii) knowing that those receiving the instruction or training intend to use it for that purpose."

Elsewhere the judge provided a similarly agreed definition of the expression "terrorism".

12. That, as can be seen, carefully mirrors the terms of the statute whilst simplifying it for the jury, no doubt in the light of the manner in which the case had been contested. In particular, it is to be observed that the judge omitted from the direction any reference to the extended category of skills referred to in section 6(3)(b): "... in connection with the commission or preparation of an act of terrorism." He confined himself to something that was capable of being done for that purpose rather than also things which were capable of being done in connection with such purpose. That is an example of the manner in which judges rightly tailor their directions to the needs of the case that they are trying.
13. The jury duly retired. Their retirement was a substantial one. After they had been in retirement for no less than a fortnight, they asked the following question:

"Attendance at a place used for terrorist training. Much has been made of the defendants' intentions. However, are we correct to read the law only as requiring that the training was for terrorist purposes, ie that the offence lies in knowingly attending even if the defendant had no intention of using the training for terrorism?"

14. Now that, as the heading applied to it by the jurors plainly demonstrates and as is common ground, was a question about the section 8 counts. However, it caused those appearing for the defendants then to raise, for the first time, the contention that the jury needed an additional direction upon the requirements of section 6(1)(b). It was common ground then, and has been before us, and it is plainly correct, that section 6(1)(b) has the effect of requiring that at least one person attending any relevant training intends to use the skills in which he is being trained for or in connection with the commission or preparation of acts of terrorism (we omit irrelevant words). That is plainly so because the requirement under section 6(1)(b) that the provider of the training knows that to be the case necessarily imports that there is such a fact in existence to be known. All of that is common ground. The submission that was advanced to the judge at the very late stage that we have mentioned, and which is advanced here today, is that the jury may not have understood that and that accordingly it may be that Hamid and Da Costa were convicted under section 6(1) in circumstances in which the jury had not been satisfied that at least one of those attending the training had the necessary intent.
15. That argument is supported today by reference back to a discussion which took place before the jury retired at an early stage during the summing-up. The judge had delivered his directions of law as agreed with counsel and had provided them, helpfully, in writing to the jury. He had begun to embark upon his summary of the evidence when the jury asked a question. An answer to it was in due course interposed into the remaining parts of the summing-up which went on for another two days or so. The question which the jury had asked at that earlier stage had been about the nature of training and it had been in these terms:

"Terrorism Act 2006. Providing training, is the requirement to show the defendant provided instruction or training? Is this training in our opinion or merely training in the mind of the trainer?"

In effect the request was for help as to whether the test of what was training was an objective one for the jury or to be concluded by what the relevant defendant himself thought. In summary, the answer that the jury received was that there were elements of both. They were correctly told that whether a particular activity amounted to training was a question for the jury, thus an objective one. But the judge went on to say that if they were to look at the third of his written directions in relation to the section 6 counts, that is to say the requirement that the defendant know that one or more of those receiving the instruction or training intended to use it for that purpose or to assist others to do so, that, said the judge, was obviously looking to an extent into the mind of the person concerned. Accordingly, said the judge, in a sense the answer to the jury's question was both. He went on to say this:

"Did he intend that one or more of those receiving it should use it for that purpose?"

It is plainly correct to say that if that last citation from the judge's communication with the jury had been intended to be a general exposition of all of the requirements of section 6 it is insufficient. It is insufficient because section 6(1)(b) does not make the test whether the provider of training intends that his training should be used for terrorist purposes; it makes the test whether he knows that someone present does in fact intend to use his training for terrorist purposes. However, that is to read too much into the exchange which took place in answer to the jury's question. The question which the judge was focusing on was whether the quality of training was something to be assessed objectively or by reference to what the relevant defendant thought. It was not intended to be a substitute for the general direction as to how to apply section 6. As to that, the jury had not only been told very clearly what everybody agreed they should be told, they also had it in writing and they still had it in writing after the exchange which we have just mentioned. As a matter of fact the answer to the question was to an extent favourable to the defendant. The judge might have said that the trainer's intention was simply irrelevant and all that was relevant was his knowledge of the intention of others. But the important point is that the requirement that at least one of those receiving instruction had the intention to use it for terrorist purposes was implicit, indeed really explicit, in the written direction which the jurors had to take away with them.

16. We agree, of course, that a judge must deal in summing up with an issue which arises on the evidence in the trial whether it is referred to by a defendant or by his counsel or not. A simple example is the case in which murder is alleged, the defendant says that he was not there, but the evidence raises the possibility that if he was there was perhaps provocation. That, however, is simply a further example of the general proposition that directions are not intended as a lecture in law, they are intended to be tailored to the issues which are raised by the evidence in the case. This case, it is perfectly clear, and indeed we have been told, had been conducted throughout on the basis that those who attended at the camps whether as trainers or as recipients of training plainly had a common purpose and the issue for the jury was what it was. That, in the circumstances of this case, was plainly realistic. There was a great deal of evidence from which it could be inferred that those attending must have had the intention of putting the training to terrorist use. We ought to say that we do not include in that last statement the fact that some of the earlier camps organised by Hamid had been attended by those subsequently convicted of the London attempted bombings on 21st July 2005. That previous training camps had been put to terrorist use by other people does not seem to us to shed much light upon the question of the use made of subsequent camps, although it was of course plainly relevant in the trial to the purpose that Hamid had in running them. But leaving that part of the evidence aside, the nature of the training in this case was elementary militaristic training. The party was trained in handling sticks as mock guns, in adopting firing positions and in moving across the country in a way in which one could keep out of observation or line of fire. In other words this does not appear simply to have been either keep fit or outdoor fun. Moreover, it was training which was being given by Hamid who habitually preached murder and it was being given by him to those who habitually listened to him preaching murder.
17. It is the fact that no one had ever suggested that the gap in the Crown case which it is now suggested existed was there. It had not been suggested at any stage during the evidence; it had not been suggested when Hamid and Da Costa were cross-examined on the basis that they knew that at least one of those present had the intention of putting the training to terrorist purposes; it had not been raised when the jury asked the question about the scope of training; it had not been raised when the judge answered it in the manner that he did, including the passage which we have cited; and it was not raised at all until the jury had not just retired but had been discussing their verdicts for a fortnight. That, we should make it clear, is not an observation which we make with any hint of criticism of any of the extremely experienced and competent advocates who dealt with this case on either side. Indeed it is the reverse of that. It is simply a demonstration that the suggested evidential gap, whilst a theoretical one which might arise in some cases, was one which did not exist on the facts of this case and the manner in which it had been fought throughout.
18. For all those reasons, the submission that the convictions of Da Costa and Hamid on the section 6 counts of providing training are unsafe is one which we are quite satisfied is not arguable.
19. The second question relates to the interrelation of section 6 and section 8. In order to understand it one needs to go back to the jury question after a fortnight's retirement which we have already cited (see para 13). As the jury observed in its question, much had been made in the trial of the defendants' intentions. That no doubt was for the reason that we have already endeavoured to explain. The question which the jury asked was: was it correct to read section 8 as requiring that the training was for terrorism purposes and that knowingly attending training which was known to be for such purposes was the offence whether or not the relevant attender had any intention of putting the training to terrorist use? The judge directed the jury that the answer to their question was that they were correct. He also took the opportunity to explain why counsel had so much addressed the questions of the intention of the various defendants for the reasons which we have already explained. The jury had in its possession the judge's written direction as to the elements of the attendance offence contrary to section 8 as they applied to this case. Those written directions had, like those relating to section 6, been agreed by counsel in advance. They were that it must be proved:

'The defendant (1) attended at a place (2) while instruction was being given in the use of firearms or any method or technique for doing something that is capable of being done for the purposes of terrorism or the preparation of an action of terrorism and (3) he knew or believed that the instruction or training was provided wholly or partly for that purpose.'

20. On behalf of the defendants it is now submitted that the effect of section 8(1)(b) is to import into the section 8 offence all the requirements of section 6(1)(a) and (b). The contention runs as follows. Section 8(1)(b) requires as an element of the offence of attending that instruction or training "of the type mentioned in section 6(1) ... is provided" [we omit words for present purposes not relevant]. It is submitted that the expression "of the type mentioned in section 6(1)" means that before an offence of attending can be committed contrary to section 8 there must be an offence of providing contrary to section 6(1). It is submitted in other words that before there can be an offence under section 8 not only must the training satisfy the test of character to be found in section 6(1)(a), but also the relevant provider, whoever he may be, must have the knowledge of the intention of at least one attender which is provided for in section 6(1)(b).
21. We do not agree. The words in section 8(1)(b) "of the type mentioned in section 6(1)" are quite clearly apt to refer to the character of the training as provided for in section 6(1)(a) and expanded in section 6(3), rather than to the state of mind of the provider of the training. If section 8(1)(b) had the meaning which is contended for, in effect what it would need to say was that it was a requirement of an offence under section 8 that an offence had been committed under section 6(1). That is not what it says. Moreover, when one looks at the scheme of the Act one can see that section 6(2) provides for a more serious form of offence of attending where the defendant has the intention of putting the training to terrorist use. Whilst it is going too far to say that section 6(2) would be redundant if the defendants' contention were correct, the scheme of the Act seems to us plainly to be to provide in section 8 that it be an offence to attend when training is being given which is (1) given for terrorist purposes, that is to say the condition in section 8(1)(c) is satisfied and (2) the relevant defendant attender knows or believes that to be the case or could not fail to understand that to be the case. Those are the requirements of section 8(2). It is certainly the case in consequence that section 8 creates an offence of attending at terrorist training even for a person who does not have the intention of putting it to terrorist purposes. In such a case he should not be there. But it arises, it is to be observed, only where he knows or believes or could not fail to understand that the instruction is being provided for terrorist purposes and it is in fact being provided for terrorist purposes. The judge's direction, agreed by counsel, was right.
22. The third question which the defendants seek to argue relates to the width of the concept of training as provided for in section 6(1)(a) and (3) which we have already cited. Particular attention is focused before us on the breadth of section 6(3)(b) which includes, in the concept of training, "training in any skills which include the use of any method or technique for doing anything else that is capable of being done for the purposes of terrorism." Say the defendants, that definition is not simply wide but uncertain. It is so uncertain, say they, that it offends the common law principle that the criminal law must be sufficiently certain for those who have to live by it to know what it means and also the similar concept contained in articles 5 and 7 of the European Convention on Human Rights. The submission undoubtedly had its origin in the handing down by this court of its decision in R v Zafar [2008] EWCA Crim 184, 2 WLR 1013. That that is its origin is plainly demonstrated by the transcripts. The judgment in Zafar was handed down whilst this jury was still in retirement. By then it had been in retirement for very nearly four weeks. The handing down of the judgment in Zafar was attended by some highly misleading publicity which the jury was bound to see and whilst discussion took place with the judge as to how to deal with that with the jury, the submission which is now developed before us was for the first time advanced before the judge.
23. We will return to Zafar but we ought at this stage to observe that Zafar was a decision upon a different section of a different act and had nothing to do with training. It was a decision on section 57 of the Terrorism Act 2000. However the argument which is developed here is that the breadth of section 6(3)(b) is such that its ambit is uncertain. Say the defendants, it needs to be read down to make it sufficiently certain to be a rule of criminal law. Two suggested methods of reading it down have been advanced to us. Mr Bennathan QC suggests that it ought to read "The skills are ... (b) the use of any method or technique done for the purpose of terrorism in connection with the commission or preparation of an act of terrorism or convention offence, etc." Mr Keleher for Da Costa suggests a slightly different reading down so that it reads "The skills are ... (b) the use of any method or technique for the commission or preparation of an act of terrorism, etc." At the root of both submissions is the contention that section 6(3)(b) ought to be read down in such a manner as to exclude from its ambit training in general fitness even if done for the purpose of equipping those trained to engage in acts of terrorism and even if one or more of those present has the intention of using the training for that purpose.
24. It is undoubtedly true that the words of section 6(3)(b) are very wide. It does seem to us that the expression "method or technique" is capable of including getting fit enough to be a useful terrorist, particularly if coupled (as here) with basic militaristic-style training. But the complaint that is made is not about the certainty of the section, it is about its breadth and its breadth is a matter of policy for Parliament. As a matter of fact we do not think that either of the suggested modifications to the section would necessarily exclude any of the present defendants or indeed fitness training generally. But the short answer to the submission, persuasively as it is made, is that unlike Zafar certainty is provided in the present case by the requirements in section 6(1)(b) that a defendant before he is convicted must know that at least one of those he is training has the intention of putting the training to terrorist use. It is, as it seems to us, perfectly comprehensible that such a person should be made by Parliament to commit an offence. Zafar involved the quite separate offence created by section 57 of the Terrorism Act 2000 which was expressed in quite different terms:

"A person commits an offence if he possesses an article in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism."

It is to be observed that that offence contains no element of mental purpose or intention on the part of the defendant, beyond that which is inherent in the concept of possession, whatever. The decision of this court in Zafar that it could only be rendered sufficiently certain by omitting effectively the words "connected with" and by placing on the Crown the burden of proving terrorist purpose if evidence be given of its absence is perfectly comprehensible, but it has no application at all to the quite different section with which we are concerned.

25. In those circumstances, the third submission made on behalf of the applicants is, like the others, one which we say is unarguable. For those reasons, the applications for leave to appeal against conviction must be refused.
26. Hamid and Atilla seek leave to appeal against their sentence. In each case the element of the sentence which they seek to challenge is that which related to the charge of soliciting to murder. The sentences which were imposed by the trial judge were as follows. In the case of Hamid he imposed an indefinite sentence of imprisonment for public protection. He fixed the minimum term, according to the complex statutory rules for doing so, at seven-and-a-half years. That was based upon notional determinate sentences for soliciting to murder and for the training counts totalling 15 years. It is apparent from what the judge said that his individual sentences for those and particularly for the training counts might have been longer but that he had regard to the principle of totality in arriving at a notional determinate sentence overall of 15 years.
27. In relation to Atilla, the learned judge imposed a determinate sentence of seven-and-a-half years, having given careful consideration to whether he remained a danger or not and having come to the conclusion that he did not. Atilla had pleaded guilty. The judge's sentences for the element of soliciting for murder were internally consistent. He plainly proceeded upon the basis that in each case the appropriate determinate term after trial was of the order of 10 years' imprisonment.
28. The submission which both Mr Blaxland QC and Mr Bennathan QC for Hamid make is that that starting point was too high in the light of other decisions of this court and elsewhere.
29. First, we have been reminded of the sentences passed in R v El-Faisal [2004] EWCA Crim 456 and R v Abu Hamza which reached this court as [2006] EWCA Crim 2918. In the first the total sentence was reduced to seven years; in the second a sentence of seven years had been imposed by the trial judge and was not challenged. The first proposition which we should address is whether either of those two cases, separately or together, should now be taken as providing some kind of benchmark for offences of soliciting to murder in the form of repeated lectures or preaching encouraging terrorist murder.
30. The case of Abu Hamza certainly concerned conduct entirely committed before the terrorist threat to the Western world was demonstrated by the events of 11th September 2001 to be as it has since been known. The atmosphere was before that entirely different. The activity of El-Faisal was very largely before that date also. More importantly, the sentences imposed upon both related to conduct which took place before the dramatic revision in sentencing for murder was made by Parliament in the provisions of the Criminal Justice Act 2003. This court has explained in R v Barot [2007] EWCA Crim 1119 the effect of those 2003 Act changes not only upon sentences for murder but on sentences for inchoate offences connected with murder, such as conspiracy to murder and, we would add, soliciting to murder. Of course Barot itself was a case very much more serious even than any of those so far referred to. It was an offence of a plan, well advanced, which had as its aim mass murder by explosions in urban places in England. But the kind of sentences discussed in Barot were very much longer than any in contemplation in the present case. In so far as the submission is made to us that Barot has no application to offences of soliciting to murder but only to conspiracy or attempt, we disagree. Of course in each of those various categories of offence it will be very relevant to look at how far advanced the plan or incitement is and it will be necessary to look at the connection between the acts of the defendant and any possible actual murder further down the line.
31. Next, our attention has been called to R v Saleem and others [2007] EWCA Crim 2692, in which this court dealt with an offence of soliciting to murder, albeit of a different kind because it was committed on a single occasion at a single demonstration, rather than by way of a series of habitual preachings or lecturing. It is in that difference, as it seems to us, that must be found the omission from that decision of any reference to R v Barot.
32. More assistance is to be provided by the decision of this court on Attorney General's Reference No 85 to 87 of 2007 [2007] EWCA Crim 3300 in which, a little after Saleem, this court did draw upon Barot for its decision. In that case the principal defendant, who had proselytised murder extensively through a large number of internet connections, albeit created over a very short time, was said to have committed offences of soliciting to murder which the court would have expected to attract a sentence of the order of 16 to 20 years. The order of the court, taking account of his guilty plea and the element of double jeopardy, was to raise his sentence to 16 years. He was a principal defendant and a man of 22.
33. We take the point that Abu Hamza and El-Faisal were people with a circulation for their solicitations to murder considerably in excess of that available to either of the present defendants. However, for the reasons we have already endeavoured to explain, we are quite satisfied that if the facts of Abu Hamza and El-Faisal were to recur now, this court and indeed the court at first instance would not be thinking in terms of sentences of the order of seven years.
34. Standing back from the sentences in this case, imposed as they were by a judge who had conducted the trial of one of the defendants and who had had every opportunity to see precisely what was involved, it seems to us that his notional determinate term of 10 years after trial was entirely consistent in particular with the decision of this court in the Attorney General's Reference to which we have just referred. We do not think that the contrary is arguable and the applications for leave to appeal against sentence by both men must accordingly be refused.