Wednesday, 23 October 2013

R v Gul - UK Supreme Court - Observations

'Terrorism' has proved very difficult to define and there is no internationally agreed definition.  For the purposes of law in the United Kingdom, the Terrorism Act 2000 section 1 gives the following definition:

(1) In this Act “terrorism” means the use or threat of action where -
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2) Action falls within this subsection if it -
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section—
(a)action” includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

Mohammed Gul was charged under the Terrorism Act 2006 section 2 (Dissemination of terrorist publications).  The police found videos on his computer which had been uploaded to various websites including Youtube.  These videos included ones that showed (i) attacks by members of Al-Qaeda, the Taliban, and other proscribed groups on military targets in Chechnya, and on the Coalition forces in Iraq and in Afghanistan, (ii) the use of improvised explosive devices ("IEDs") against Coalition forces, (iii) excerpts from "martyrdom videos", and (iv) clips of attacks on civilians, including the 9/11 attack on New York. These videos were accompanied by commentaries praising the bravery, and martyrdom, of those carrying out the attacks, and encouraging others to emulate them.

The case for the prosecution was that each of these videos constituted "a terrorist publication" within section 2(3), which the appellant had "distribute[d] or circulate[d]" within section 2(2)(a), and consequently he had committed an offence by virtue of section 2(1), of the 2006 Act. The appellant's principal defence was that, although he did not agree with the targeting of and attacks on civilians, he believed that the use of force shown in the other videos was justified as it was being employed in self-defence by people resisting the invasion of their country.

The Court of Appeal certified a point of general public importance, namely:

    "Does the definition of terrorism in section 1 of the Terrorism Act 2000 operate so as to include within its scope any or all military attacks by a non-state armed group against any or all state or inter-governmental organisation armed forces in the context of a non-international armed conflict?"
The Supreme Court, having examined Mr Gul's case from the point of view of both domestic law [26-41] and international law [42-58], answered YES to the certified question.  Mr Gul's appeal was therefore dismissed.
R v Gul (Appellant) [2013] UKSC 64

The case is of particular interest because of the court's observations about the Terrorism Act 2000.

The Act has the very broad definition of terrorism (cited above) and combines this with prosecutorial discretion under section 117.   See also the 2006 Act section 19.   The Supreme Court had this to say [36-37]

  1. The Crown's reliance on prosecutorial discretion is intrinsically unattractive, as it amounts to saying that the legislature, whose primary duty is to make the law, and to do so in public, has in effect delegated to an appointee of the executive, albeit a respected and independent lawyer, the decision whether an activity should be treated as criminal for the purposes of prosecution. Such a statutory device, unless deployed very rarely indeed and only when there is no alternative, risks undermining the rule of law. It involves Parliament abdicating a significant part of its legislative function to an unelected DPP, or to the Attorney General, who, though he is accountable to Parliament, does not make open, democratically accountable decisions in the same way as Parliament. Further, such a device leaves citizens unclear as to whether or not their actions or projected actions are liable to be treated by the prosecution authorities as effectively innocent or criminal - in this case seriously criminal.

  2. Given that the consent requirement in section 117 is focused on the decision whether to consent to a prosecution, this approach to the construction of the 2000 Act has two further undesirable consequences. First, the lawfulness of executive acts such as detention, search, interrogation and arrest could be questioned only very rarely indeed in relation to any actual or suspected involvement in actual or projected acts involving "terrorism", in circumstances where there would be no conceivable prospect of such involvement being prosecuted. Secondly, the fact that an actual or projected activity technically involves "terrorism" means that, as a matter of law, that activity will be criminal under the provisions of the 2000 and 2006 Acts, long before, and indeed quite irrespective of whether, any question of prosecution arises.
There may be a tension here between paragraph 36 and the attitude hitherto adopted to some other offences requiring consent.  In relation to the offence of Assisting Suicide (Suicide Act 1961) the House of Lords required the DPP to issue guidance regarding when prosecutions might be appropriate - R(Purdy) v DPP [2009] UKHL 45.

The court made further observations at [60-64] - (my emphasis)

  1. First, we revert to the concern about the width of the definition of "terrorism", as discussed in paras 28-29 and 33-37 above. In his first report, Mr Anderson QC made the point that "the current law allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked". He went on to say that "other definitions of terrorism choose to exclude activities sanctioned by international law from the reach of terrorist activity", citing the Canadian and South African Criminal Codes as examples. In his second report, Mr Anderson mentioned the "potential application of the Terrorism Acts even to UK forces engaged in conflicts overseas", and referred to the fact that a recent Australian report "recommend[ed] that Australian law be changed so as to provide that the relevant parts of the Criminal Code, as in Canada, do not apply to acts committed by parties regulated by the law of armed conflict."

  2. While acknowledging that the issue is ultimately one for Parliament, we should record our view that the concerns and suggestions about the width of the statutory definition of terrorism which Mr Anderson has identified in his two reports merit serious consideration. Any legislative narrowing of the definition of "terrorism", with its concomitant reduction in the need for the exercise of discretion under section 117 of the 2000 Act, is to be welcomed, provided that it is consistent with the public protection to which the legislation is directed.

  3. The second general point is that the wide definition of "terrorism" does not only give rise to concerns in relation to the very broad prosecutorial discretion bestowed by the 2000 and 2006 Acts, as discussed in paras 36-37 above. The two Acts also grant substantial intrusive powers to the police and to immigration officers, including stop and search, which depend upon what appears to be a very broad discretion on their part. While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of "terrorism" is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the Acts give rise.

  4. Thus, under Schedule 7 to the 2000 Act, the power to stop, question and detain in port and at borders is left to the examining officer.  The power is not subject to any controls. Indeed, the officer is not even required to have grounds for suspecting that the person concerned falls within section 40(1) of the 2000 Act (i.e.that he has "committed an offence", or he "is or has been concerned in the commission, preparation or instigation of acts of terrorism"), or even that any offence has been or may be committed, before commencing an examination to see whether the person falls within that subsection.   On this appeal, we are not, of course, directly concerned with that issue in this case.  But detention of the kind provided for in the Schedule represents the possibility of serious invasions of personal liberty. 
The observations regarding powers given to the Police and immigration officers will have particular resonance in relation to the David Miranda case.  Mr Miranda was detained under Schedule 7 of the Terrorism Act 2000.


The word dialogue is in vogue with regard to the relationship between the Supreme Court and the European Court of Human Rights.  It is interesting to wonder whether we are now seeing the beginning of dialogue between the Supreme Court and Parliament.  The Gul judgment could have been just as effective and much shorter had the various observations about the legislation been omitted.  However, the Supreme Court has opted to express concerns though it has also been careful to emphasise that it is a matter for Parliament.


  1. Note also the following paragraph from [2012] EWCA Crim 280, a hearing concerning Mohammed Gul in the Court of Appeal in February 2012 (hearing dates 8th/9th November 2011):

    #21 It was submitted by the Crown that the nature of the [Iraq & Afghanistan ] conflicts was a matter of high policy which was what is described in Halsbury's Laws of England (5th edition, vol 61 at paragraph 14-15) as "facts of state". Such matters are exclusively for the determination of the Executive branch of the state and not the Judicial branch.

    So the high policy of conflict(terrorism) enacted by a state will only be classed as terrorism when it suits the government - i.e. only 'enemy states' ever do it.

  2. Re a recent European Court of Human Rights hearing on 1 October 2013 to investigate complaints that there was an alleged:

    ...deliberate attempt to manipulate the [UK] court’s process on any retrial by seeking to ensure that the world at large was prejudiced against the defendants by an unprecedented volume of state-sourced media coverage ....[which was] .....manipulated and orchestrated by state sources, either intelligence services, police anti-terrorist branches or government officials.

    This hearing concerned the 2006 'Airline Liquid Explosive Plot' which led to the outlawing of the carrying of liquids on planes by persons travelling by air.

    It is a great travesty that the hearing decided to ... adjourn the examination of the applicant’s complaint & declare the remainder of the application inadmissible..

    Someone must have been seriously misinformed/misdirected, as the [3] applications were all submitted 1 day late!!

    It would be good to read any comments you may have on this, Obiter J.