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European Union Judicial Cooperation Unit EUROJUST September 2010 Terrorism Convictions Monitor EUROJUST Report Based on open sources information Issue 8 CMT-AV/PI/IL/CV-2010-0008
European Union Judicial Cooperation Unit
EUROJUST
September 2010 Terrorism Convictions Monitor
EUROJUST Report
Based on open sources information
Issue 8
CMT-AV/PI/IL/CV-2010-0008
Terrorism Convictions Monitor, Issue 8, September 2010
2
Contents
I. Introduction
II. Terrorism Convictions
Overview
1. Terrorism Convictions by Member State
May-August 2010
2. Other Judgments of Interest May-August 2010
3. Comparative Analysis Terrorism Convictions
May-August 2010
III. Legal Update 1. EU
2. EU Member States Overview
IV. The Way Ahead
V. Judicial Analysis on
Selected Cases
Appendix Contact and Analysis Team
Terrorism Convictions Monitor, Issue 8, September 2010
3
I. Introduction
Why a Terrorism
Convictions Monitor
The Terrorism Convictions Monitor (TCM) is intended to provide a
regular overview of the terrorism-related developments throughout the EU
area. The Monitor has been developed on the basis of open sources
information available to the CMT and methodologies such as individual
case studies and comparative analysis. There is a link provided to each of
the convictions and acquittals found on the EUROJUST Intranet External
News and/or the Internet. In addition, the current TCM includes also
information exclusively provided to Eurojust by the national
authorities of one EU Member State by virtue of Council Decision
671/JHA/2005 with no links to open sources.
Issue 8 of the TCM covers the period May-August 2010. It contains also a
chapter with judicial analysis on selected cases from the recent past.
The general objective of the TCM is to inform and kindly invite the National
Members to review, confirm, and if possible, complete the information
retrieved from various open sources. In the cases where such a
confirmation and/or follow-up is needed, a special icon will appear. The
respective National Desks will be further contacted for specific details. In
cases where the information has already been provided, it will be noted by
a .
National correspondents on terrorism are still encouraged to
provide information for 2010 in conformity with Council Decision
671 on an ongoing basis to Eurojust.
Terrorism Convictions Monitor, Issue 8, September 2010
4
II. Terrorism Convictions Overview
1. Terrorism Convictions/Acquittals by Member State
May-August 2010
Belgium May 2010
A court in Brussels found Malika A. guilty of leading a terrorist group linked to Al-
Qaida and sentenced her to 8 years in prison. The group recruited people in
Belgium and France for jihad in Afghanistan. Malika A., convicted in 2007 by a
Swiss court for supporting radical Islamist organisations via Internet sites, was
later arrested, together with the other 8 co-defendants, following the discovery of
suicide attack plans. The court sentenced also Moez G. (Malika‟s second husband
who was tried in absentia) to 8 years‟ imprisonment, Hicham Z. (also tried in
absentia) and Hicham B. to 5 years each, Said A., Muhammed B. and
Abdulaziz B. to 40 months each, and Ali G. to 3 years. The court ordered the
convicted to pay fines as well. Jean-Christophe T. was acquitted due to lack of
evidence. Malika A.‟s first husband was one of the suicide bombers responsible for
the killing of the leader of Afghanistan's anti-Taleban Northern Alliance in
September 2001 (for details, please see V. Judicial Analysis on Selected Cases).
Source: Belgian National Desk at Eurojust, BBC/Asia One News, External News Intranet.
France June 2010
The French court convicted 9 men suspected of conspiracy to preparing terrorist
acts and possession of weapons. The alleged leaders of the so-called Besançon and
Carcassonne groups, Samir A. and Arsen A., received the longest sentences of 3
years, 2 of which suspended. They had held weapons, including a Kalashnikov and
automatic pistols. Both denied to be Muslim radicals and claimed to have been
motivated by their passion for weapons. Some other members of the groups were
accused of engaging in paramilitary training. 3 of the remaining 7 convicted were
sentenced to 30 months, 2 others to 24 months, 1 to 8 months and another one to
4 months in prison.
Source: Le Figaro.
The Paris Criminal Court found ETA members Íñigo R. and Urtzi G. guilty of
participation in the military apparatus of the terrorist organisation, robbery,
possession of stolen goods, forged documents and sequestration, and sentenced
them to 7 years‟ imprisonment. Another co-defendant, Alaitz A. was sentenced to
5 years on the charge of participation in a criminal association with terrorist
purposes. The three convicts were banned for good from French territory upon the
Terrorism Convictions Monitor, Issue 8, September 2010
5
completion of their prison terms.
Source: Eitb/Ouest France, External News Intranet.
July 2010
The Special Assize Court in Paris convicted 5 men accused of stealing €1 million
from Brink‟s near Paris in 2004 with the purpose of financing the overseas
activities of terrorist groups. The money was never found. One of the groups to be
financed was the Al-Qaida-related Moroccan Islamic Combatant Group (GICM),
suspected of having financed the 2003 Casablanca attacks and implicated in the
2004 Madrid bombings. One of the defendants, Hassan B., who was in charge of
the maintenance of cash dispenser machines at Brink‟s, declared to have been
abducted by 3 men and forced to hand over the money. A co-defendant and
accomplice, Fred G., confessed later that the hostage taking was fake and that the
robbery had been done by Hassan B., Zine K. and Abdelnasser B. The latter two
defendants had a certain “jihadist background” and had likely trained together in
Al-Qaida camps in Afghanistan.
Hassan B., Zine K. and Abdelnasser B. were charged with robbery in an organised
group, criminal conspiracy with a terrorist aim and financing of terrorism. The
other 2 defendants, Fred G. and Djamel K., were charged with handling of stolen
goods in an organised group and criminal conspiracy with a terrorist aim. The
sentences handed down by the Court were generally lighter than the prosecution
had asked for as the terrorism related charges were not retained for all the
defendants. Abdelnasser B., tried in absentia as he had fled to Algeria, and Zine
K., were sentenced respectively to 12 and 10 years‟ imprisonment. Hassan B., Fred
G. and Djamel K. were sentenced respectively to 6 years, 4 years and 18 months
in prison. One of them, Zine K., had already been sentenced to 6 years‟
imprisonment in another terrorism case of the so-called “Chechen networks”,
which had allegedly organised Islamist attacks in Paris in 2001-2002.
Source: L’Expres, Jeune Afrique, Au Fait Maroc.
Germany July 2010
A state court in Koblenz convicted Omer O. of membership in Al-Qaida, providing
it with financial and logistical support for jihad, and taking part in 2 training camps.
He was sentenced to 6 years‟ imprisonment. His co-defendant, Sermet I. was
found guilty of supporting the group by supplying funds and weapons and given a
2.5-year sentence. According to the court, Omer O. had recruited for Al-Qaida
another individual who broadcast online videos with threats to Germany before the
federal elections in September 2009 and is currently wanted. The proceeding was
related to a trial against Aleem N. sentenced in July 2009 to 8 years‟ imprisonment
for Al-Qaida membership and violation of German export laws (for details, please see
TCM, issue 5). Source: Deutsche Welle/Reuters, External News Intranet.
Terrorism Convictions Monitor, Issue 8, September 2010
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Republic of Ireland
May 2010
The Special Criminal Court found former Sinn Fein councillor Tom H. guilty of IRA
membership and sentenced him to 3 years and 3 months in prison. He was a Sinn
Fein councillor until 2004 and ran in the Republic's general election in 2002. He
was thought to have been involved in financial transactions linked with proceeds
from the Northern Bank robbery in Belfast. He had however not been charged with
money laundering.
Source: BBC.
The Special Criminal Court sentenced Ciaran C. to 5 years‟ imprisonment, half of
which suspended, for possessing parts for pipe bombs in 2009. In February he
pleaded guilty to charges of unlawfully possessing explosive substances.
Source: Breaking News.
The Special Criminal Court sentenced Edward M. to 3 years in prison after he was
found guilty of INLA membership in July 2009. He was convicted in relation to a
kidnap plot. Other co-defendants in the trial who had also been found guilty were
already convicted earlier.
Source: Highland Radio.
The Special Criminal Court sentenced Joseph C. to 6 years in prison after he
pleaded guilty to unlawful possession of explosives in September 2009.
Source: IrelandOn-Line.
June 2010
The Special Criminal Court sentenced George H. to 6 years in prison, suspended,
after he pleaded guilty to money laundering charges. He was arrested as part of
the investigation of the Northern Bank robbery after £66,000 was found in his
home. He was also charged with IRA membership but he denied the charge. His
co-defendant Tom H. was sentenced in May 2010 (please see above).
Source: BBC.
July 2010
The court in Dublin sentenced Adam B., founder of the republican Scottish
National Liberation Army (SNLA), to 4 years‟ imprisonment, the last 2 of which
suspended, for having made hoax bomb threats against transatlantic flights. He
was found guilty of causing “annoyance, inconvenience or needless anxiety” by
claiming that there were bombs on two flights to New York in 2006. Both cases
were assessed as low risk by officials. Adam B. fled to Ireland in 1980 after he
directed some minor attacks in Scotland. He has a previous conviction handed
down by the Special Criminal Court for having made threatening phone calls to the
press. His son, Adam B. Jr., was convicted in May 2009 of sending suspect
packages to politicians and public buildings (for details, please see TCM, issue 5). The
Terrorism Convictions Monitor, Issue 8, September 2010
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SNLA was declared illegal in Ireland in 2005.
Source: The Guardian, External News Intranet.
Italy July 2010
The court in Milan sentenced Mohammed G. to 14 years‟ imprisonment and co-
defendant Mahmud K. to 4 years over a plot to blow up military barracks in Milan
in October 2009. As a result of the attack, Mohammed G., Italy‟s first would-be
suicide bomber, and an Italian soldier were injured. Mohammed G. was also
ordered to pay damages of €100,000 to the Italian state. A third defendant is due
to be sentenced later in the year.
Source: Austrian Times.
Spain May 2010
The National Court found GRAPO member Marcos P. guilty of terrorist
assassination and sentenced him to 30 years‟ imprisonment. He was involved in
the attack and murder of a policeman in Madrid in 2000.
Source: Spanish Desk at Eurojust.
In a trial against 13 alleged ETA members, charged with illicit association (for
membership in an armed group) and with terrorism (for collaboration with an
armed group), the National Court acquitted 8 of the defendants and sentenced 5
other. Zugaitz I. and Carlos M. were given 7 years‟ imprisonment for illicit
association (for membership in an armed group or a terrorist organisation) each.
Regina M., Alberto G. and Mikel G. were sentenced to 6 years‟ imprisonment
each for terrorism (for collaboration with an armed group or a terrorist
organisation).
Source: Spanish Desk at Eurojust.
The National Court acquitted Miguel G. accused of collaboration with a terrorist
organisation. He was arrested on suspicion of having managed a bar in which
activities such as proselitism, propaganda and financing of the youth organisation
SEGI took place.
Source: Spanish Desk at Eurojust.
In a trial at the National Court 5 defendants were accused of several offences,
including conspiracy to commit acts of terrorism. Khaled B. and Salim Z. were
acquitted of all charges. Said B. was found guilty of benefiting from proceeds of
crime and sentenced to 1 year in prison. Lyes S. and Soufiane S. were both
found guilty of possession of falsification devises and given 8 years‟ imprisonment
each. Lyes S. was also convicted of falsification of an official document and
Terrorism Convictions Monitor, Issue 8, September 2010
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received an additional 6-month sentence.
Source: Spanish Desk at Eurojust.
The National Court convicted 3 suspected ETA members in relation to the bomb
blast at the airport of Madrid in 2006 which killed 2 people and injured 41 others.
Mattin S., Igor P. and Mikel S. we charged with destruction, 2 offences of a
completed terrorist assassination and 48 offences of a tentative terrorist
assassination. All 3 defendants were sentenced to 1,040 years in prison each. They
were ordered to pay a total of €1,200,000 in compensation to the families of the
victims. In December 2006 the 3 had placed a bomb in a van in one of the parking
lots at the airport. A former ETA military chief, Garikoitz A., who is the suspected
mastermind of the attack, is expected to go on trial at a later date.
Source: Spanish Desk at Eurojust, The Telegraph, External News Intranet.
The National Court convicted Borja O. of damage from terrorist arson and
sentenced him to 2.5 years in prison. He was arrested for lighting a Molotov
cocktail at a post office in 2007.
Source: Spanish Desk at Eurojust.
June 2010
In a trial of 4 alleged ETA members, charged with membership in an armed group,
possession of terrorist explosives, possession of terrorist weapons and conspiracy
to cause terrorist destruction, the National Court convicted Igor P. and Mattin S.
to 17.5 years in prison each. Joseba I. and Mikel S. were acquitted.
Source: Spanish Desk at Eurojust.
In a trial at the National Court 2 defendants Hiyag M. and Chafik B. were charged
with collaboration with a terrorist organisation and falsification. Hiyag M. was
arrested in 2005 for holding radical Islamist ideas and trying to recruit people to
join terrorist movements in conflict zones such as Iraq. Chafik B. was arrested in
2006 on charges of falsification of documents. The 2 defendants were acquitted of
the charge of collaboration with a terrorist organisation and Chafik B. was
sentenced to 6 months in prison for falsification.
Source: Spanish Desk at Eurojust.
The National Court acquitted Gonzalo L. and Faith A. charged with praising
terrorism and undervaluing victims of terrorism. They were arrested for posting
messages in an Internet forum and also videos on YouTube mentioning the judicial
authorities.
Source: Spanish Desk at Eurojust.
The National Court acquitted Ainhoa O. of praising terrorism but found her guilty
of lack of respect for public order and ordered her to pay a fine. She was arrested
Terrorism Convictions Monitor, Issue 8, September 2010
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in relation to an incident with a number of photographs.
Source: Spanish Desk at Eurojust.
The National Court found Javier G. guilty of possession of explosives on behalf of
a member of a terrorist organisation and sentenced him to 9 years in prison. He
was arrested in relation to an attempt made by ETA to transport to France a big
amount of explosives.
Source: Spanish Desk at Eurojust.
July 2010
The District Court of Madrid ordered the dissolution of the neo-Nazi group
Blood&Honour and sentenced 15 of its 18 members tried to 1 to 3.5 years‟
imprisonment for illicit association and possession of arms. The founders of the
group, Roberto L. and Francisco L., were sentenced to 3 and 3.5 years
respectively for directing the group. The other convicted members received smaller
sentences.
Source: El Mundo.
The National Court found Jorge G. and Israel C. guilty of belonging to a terrorist
organisation (GRAPO), robbery and illegal detention and sentenced them to a total
of 29 years in prison each. In March 2007 the two approached a Cajamar
employee and forced him to open the bank. They left with €34,666. They were
ordered to pay compensation of €20,100 for moral damages. In the same sentence
the court convicted also Ramon A. for benefitting of proceeds of crime and
sentenced him to 2 years‟ imprisonment.
Source: El Mundo, External News Intranet.
The National Court convicted ETA-related Amets L., Ibai E., Maria A. and Javier
G. for hiding and helping 2 ETA members escape to France at the end of 2008.
Amets L. was sentenced to 7 years and his co-defendants to 5 years in prison.
Maria P. was acquitted.
Source: El Mundo.
The National Court convicted ex-member of ETA‟s Madrid command Joseba U. for
his role in the killing of 3 policemen and sentenced him to a total of 119 years‟
imprisonment. The policemen lost their lives when trying to detonate a bomb
which exploded on 1 July 2001 in Madrid. Joseba U. was also ordered to pay
€250,000 to the widows of the policemen and €125,000 to each of the eight
children of the victims.
Source: El Mundo.
Terrorism Convictions Monitor, Issue 8, September 2010
10
Sweden July 2010
The Helsingborg District Court found brothers Mentor and Mensur A. guilty of
arson and sentenced them to 3 and 2 years‟ imprisonment respectively. They were
arrested on suspicion of the arson attack against the home of the Swedish
Muhammad cartoonist after several of their personal items were found outside the
victim‟s home following the Molotov cocktail attack. The attack came after an Al-
Qaida front organisation offered $100,000 to anyone who murdered the cartoonist
and $50,000 to anyone who murdered the editor-in-chief of the newspaper that
first published the cartoons. An appeal is expected.
Source: The Local.
United Kingdom May 2010
The Newcastle Crown Court found Ian D. and his son Nicky D. guilty of plotting to
use ricin in a terrorist attack. Ian D., the first Briton to be convicted for producing
a chemical weapon, received a 10-year sentence. He recruited his teenage son to
help run Aryan Strike Force (ASF) which idolised Hitler. Nicky D. was sentenced
to 2 years for possessing material useful to commit acts of terrorism. The ASF
recruited about 350 people worldwide online. More trials of other ASF members are
expected later in the year.
Source: The Guardian.
June 2010
The Manchester Crown Court convicted self-confessed British leader of Al-Qaida
Ishaq K. in relation to his online activities in 2008 and sentenced him to 5 years‟
imprisonment. Using a public computer at the Blackburn Central Library, he had
placed messages in a forum stating that former British Prime Ministers Tony Blair
and Gordon Brown would be targets of “martyrdom seekers” if Muslims were not
released from a London prison and all British forces were pulled out of Iraq and
Afghanistan. During the trial, the man pleaded guilty to professing to belong to Al-
Qaida and inviting support for the terror group as well as collecting or making a
record of information which is likely to be useful to a terrorist and disseminating
terrorist publications. He denied the two counts of soliciting to murder the two
politicians. He was found guilty of all the charges and his sentences will run
concurrently.
Source: The Guardian, External News Intranet.
The Belfast Crown Court found the Real IRA commander Paul M. guilty of a
number of offences related to an attempt to smuggle a huge cache of weapons and
explosives into Northern Ireland. The deal was negotiated with an undercover MI5
agent who was also asked by Paul M. to arrange the assassination of a retired
army general, a former commander of the UN troops in Bosnia. A co-defendant,
Dermot G., was found guilty of a lesser charge. The trial of a third man was ended
earlier as, according to the judge, he was wrongfully entrapped by the MI5. The
Terrorism Convictions Monitor, Issue 8, September 2010
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two convicted men will be sentenced later in the year.
Source: Belfast Telegraph, External News Intranet.
July 2010
The Woolwich Crown Court found Ibrahim S., Arafat K. and Waheed Z. guilty of
conspiracy to murder in relation to their part in the plot to blow up transatlantic
airliners in 2006. They were sentenced to life imprisonment with a minimum of 20
years to be served. The men were previously acquitted of conspiracy to murder
using explosives on aircraft. According to the prosecution, each of the three had
made a suicide video in which they described themselves as being “blessed” to take
part in the mission. The operation against the airline bomb plot has resulted in a total of
12 convictions, 8 of which with a life sentence (for details and analysis of previous
judgments, please see TCM, issues 3, 6 and 7).
Source: BBC/Telegraph, External News Intranet.
Terrorism Convictions Monitor, Issue 8, September 2010
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2. Other Rulings and Judgments of Interest
May-August 2010
Germany July 2010
German authorities have banned the Internationale Humanitaere
Hilfsorganisation (IHH) for violating a clause in the German constitution on
international goodwill. According to the German authorities the donour group has
supported Hamas by sending to the organisation money which was supposedly
donated for charitable purposes.
Source: Reuters.
European Court of Human Rights
June 2010
On 28 June 2010 the Chamber judgment of the European Court of Human Rights,
dated 12 January 2010, in the case of Gillan and Quinton v. the United Kingdom
(application no. 4158/05) became final. As a result of this, police will no longer be
able to use section 44 of the Terrorism Act 2000 to stop and search members of
the public, only vehicles. According to the Court, the police's use of section 44
powers breached Article 8 of the European Convention on Human Rights which
provides for the right to respect for private life. The UK authorities announced the
introduction of interim measures that will bring section 44 stop and search powers
fully into line with the Court's judgment.
Source: European Court of Human Rights/Statewatch, External News Intranet.
USA July 2010
The Supreme Court upheld a federal law that makes it a crime to provide “material
support” to foreign terrorist organisations. Such help includes contributions of
cash, weapons and other tangible aid but also training, personnel service and
expert advice or assistance. In the opinion of Chief Justice John G. Roberts Jr. the
law does not violate the First Amendment. This decision was the Court‟s first ruling
on the free speech and associations rights of Americans in the context of terrorism
since the September 11 attacks. Since 2001 about 150 defendants have been
charged for violating the material-support provision and 75 have been convicted.
Among the challengers of the law were a few organisations said to have sought to
help the Liberation Tigers of Tamil Eelam (LTTE) and PKK.
Source: New York Times, External News Intranet.
Terrorism Convictions Monitor, Issue 8, September 2010
13
3. Comparative Analysis
Terrorism Convictions May-August 2010
Member States
with convictions/
acquittals
Terrorism related trials in several EU Member States have resulted in convictions/
acquittals in the period May-August 2010 (please see map below).
Figure 1. EU Member States with terrorism convictions/acquittals in the period May-August 2010
Member States with terrorism-related convictions/acquittals
Member States without terrorism-related convictions/acquittals
Terrorism Convictions Monitor, Issue 8, September 2010
14
Based on the information available in the open sources, several comparative charts
have been drawn to illustrate some facts of particular interest. By exception, the
numbers for Spain contain also information provided to Eurojust in implementation of
Council Decision 671 of 2005.
Number of
convictions/
acquittals in
terrorism trials
per Member State
Member State Convicted Acquitted Total Acquitted (%)
Belgium 8 1 9 11%
France 17 - 17 0%
Germany 2 - 2 0%
Ireland 6 - 6 0%
Italy 2 - 2 0%
Spain 41 20 61 33%
Sweden 2 - 2 0%
UK 8 - 8 0%
TOTAL 86 21 107 20%
Figure 2. Number of convictions/acquittals per Member State
The chart contains the information regarding the number of convictions/acquittals per Member
State over the period May-August 2010.
Length of
sentences
Figure 3. Length of sentences per Member State The chart illustrates the information regarding the length of terrorism related sentences per
Member State over the period May-August 2010.
* Sentencing to take place later in the year.
0
5
10
15
20
25
30
35
40
45
BE DE ES FR IE IT SE UK
61
22
12
41 2 2
2
1
9
4
21
1
1
23
4
3
1
2No
. o
f sen
ten
ces p
er
len
gth
Not available*
Fine
Life imprisonment
30+ years
26-30 years
21-25 years
16-20 years
11-15 years
6-10 years
0-5 years
Terrorism Convictions Monitor, Issue 8, September 2010
15
Affiliation of tried
individuals
Member State
Islamist Left wing
Right wing
Separatist
Not specified
Total
Belgium 9 - - - - 9
France 14 - - 3 - 17
Germany 2 - - - - 2
Ireland - - - 6 - 6
Italy - - - - 2 2
Spain 7 4 18 30 2 61
Sweden 2 - - - - 2
UK 4 - 2 2 - 8
TOTAL 38 4 20 41 4 107
Figure 4. Affiliation of tried individuals
The chart illustrates the information regarding the affiliation of convicted individuals, in cases
when it was expressly stated, over the period May-August 2010.
Age of convicted
individuals
Figure 5. Age of convicted individuals
The chart illustrates the information regarding the age of convicted individuals in the EU Member
States over the period May-August 2010.
Gender of
convicted
individuals
Figure 6. Gender of convicted individuals
The chart illustrates the information regarding the gender of convicted individuals in the EU
Member States over the period May-August 2010.
2%
20%
19%
16%
2%
41% Under 20
20-30
31-40
41-50
50+
Unavailable
94%
6%
Male
Female
Terrorism Convictions Monitor, Issue 8, September 2010
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III. Legal Update
1. EU
May 2010
Commission Regulation (EC) No 417/2010 of 12 May 2010 amending for the 127th
time Council Regulation (EC) No 881/2002 imposing certain specific restrictive
measures directed against certain persons and entities associated with Usama bin
Laden, the Al-Qaida network and the Taliban.
Source: Official Journal of the EU.
Commission Regulation (EC) No 450/2010 of 21 May 2010 amending for the 128th
time Council Regulation (EC) No 881/2002 imposing certain specific restrictive
measures directed against certain persons and entities associated with Usama bin
Laden, the Al-Qaida network and the Taliban.
Source: Official Journal of the EU.
June 2010
Commission Regulation (EC) No 507/2010 of 11 June 2010 amending for the 129th
time Council Regulation (EC) No 881/2002 imposing certain specific restrictive
measures directed against certain persons and entities associated with Usama bin
Laden, the Al-Qaida network and the Taliban.
Source: Official Journal of the EU.
July 2010
Commission Regulation (EC) No 586/2010 of 2 July 2010 amending for the 130th time
Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures
directed against certain persons and entities associated with Usama bin Laden, the
Al-Qaida network and the Taliban.
Source: Official Journal of the EU.
Council Implementing Regulation (EU) No 610/2010 of 12 July 2010 implementing
Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures
directed against certain persons and entities with a view to combating terrorism and
repealing Implementing Regulation (EU) No 1285/2009.
Source: Official Journal of the EU.
Council Decision 2010/386/CFSP of 12 July 2010 updating the list of persons, groups
and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the
application of specific measures to combat terrorism.
Source: Official Journal of the EU.
Communication from the Commission to the European Parliament and the Council
COM (2010) 386 final of 20 July 2010 on the EU Counter-Terrorism Policy: main
achievements and future challenges.
Source: European Commission.
Terrorism Convictions Monitor, Issue 8, September 2010
17
Commission staff working paper Taking Stock of EU Counter-Terrorism Measures SEC
(2010) 911 final of 20 July 2010.
Source: European Commission.
Commission Regulation (EC) No 663/2010 of 23 July 2010 amending for the 131st
time Council Regulation (EC) No 881/2002 imposing certain specific restrictive
measures directed against certain persons and entities associated with Usama bin
Laden, the Al-Qaida network and the Taliban.
Source: Official Journal of the EU.
Commission Regulation (EC) No 681/2010 of 29 July 2010 amending for the 132nd
time Council Regulation (EC) No 881/2002 imposing certain specific restrictive
measures directed against certain persons and entities associated with Usama bin
Laden, the Al-Qaida network and the Taliban.
Source: Official Journal of the EU.
August 2010
Commission Regulation (EC) No 713/2010 of 9 August 2010 amending for the 133rd
time Council Regulation (EC) No 881/2002 imposing certain specific restrictive
measures directed against certain persons and entities associated with Usama bin
Laden, the Al-Qaida network and the Taliban.
Source: Official Journal of the EU.
2. Other
EU & USA July 2010
On 8 July the European Parliament voted in favour of a new version of the SWIFT
anti-terrorist agreement on bank data transfers to the US. The agreement was
referred to Parliament for its consent on 25 January 2010. Following its rejection in
February, negotiations on the text were resumed by the Commission in May and on
28 June 2010 the agreement was signed by the Member States‟ ministers. The new
version of the agreement provides for certain safeguards for EU citizens as well as for
the establishment of a European data processing system that precludes the need to
transfer data in bulk to the US. The agreement is to take effect on 1 August 2010.
Source: European Parliament.
Terrorism Convictions Monitor, Issue 8, September 2010
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IV. The Way Ahead
With a view to a more structured approach to the preparation of EUROJUST‟s contribution to the TE-SAT
2011, the CMT has been following the current developments in several trials where convictions are expected
within the next few months. They include inter alia:
DE A trial against 3 defendants charged with belonging to the LTTE and
providing funds for weapons and supplies.
ES A trial against 3 suspected ETA members, the so-called “Sheffield three”,
supposedly sent to the UK to plot attacks and hide from the authorities.
NL A re-trial of the so-called “Hofstadgroep” following the decision of the
Supreme Court earlier this year.
NO A trial on terrorist financing charges against a Somali-born man.
Any further developments, resulting in convictions in the above-mentioned or any other trials, will be
presented in the next edition(s) of the Terrorism Convictions Monitor.
Terrorism Convictions Monitor, Issue 8, September 2010
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V. Judicial Analysis on Selected Cases
Foreword The present analytical chapter has been produced in an attempt to provide a
different insight on terrorist judgments throughout the EU area. It is intended to
help practitioners and offer relevant case studies and comparative analyses.
The judgments to be analysed have been purposefully selected. In order to ensure
a unified approach to the analysis, it has been conducted following a special
methodology. The main categories analysed in a 1st instance judgment include:
brief description of the facts, peculiarities in the investigation phase, the offences
accused, the offences convicted, the sentence handed down, etc. In case of an
appeal judgment, the grounds for appeal are also studied as well as the decision of
the appeal judges on the charges and sentences.
The analysis of judgments could identify several lines of comparison. They include,
for example: brought charges vs. convicted offences (within a judgment), 1st
instance judgment vs. appeal judgment (within the same case), judgments of
different accomplices in the terrorist enterprise/organisation brought to trial
together and judgments for relatively comparable criminal offences in different
trials (within 2 or more judgments).
The latter line of comparison is of a particular interest from an analytical point of
view in order to identify similarities and differences in the Member States. The
deliberate selection of judgments for similar offences will help shed some light on
the respective type of terrorist phenomenon as well as the outcome of criminal
proceedings/trials in one or more EU Member States. In order to ensure relativity
and comparability, judgments from one and the same instance should be selected
for comparison e.g. 1st instance judgments should be compared with 1st instance
judgments, appeal judgments with appeal judgments, etc.
Introduction In the present analysis two judgments, one from Belgium and one from the United
Kingdom, have been selected1. Though different in nature, the two cases feature
some common attributes that include:
Islamist terrorism;
Radicalisation;
Use of Internet.
A detailed analysis of the two judgments follows below.
1 The Case Management Team would like to express its gratitude and appreciation to the Belgian National Desk at Eurojust for providing the text of the judgment on the Belgian case as well as to the UK National Desk at Eurojust for providing a link to the report on the UK case.
Terrorism Convictions Monitor, Issue 8, September 2010
20
1. Judgment Belgium
Introduction: In May 2010, the Tribunal de Première Instance of Brussels issued a judgment in a
case of membership and leadership of a terrorist organisation against eight defendants, who were also
charged with financing of terrorism and providing means and information to contributing to the
committing of terrorist acts. The Belgian judgment is in many aspects very interesting. The central
figure of this trial was a woman, Malika El A., born in Morocco and of Belgian nationality. Her “history”
shows she has been a person of interest for law enforcement authorities across Europe for a long
time, which was a determining factor in her sentencing:
- 2003: she was acquitted in Belgium during the trial of a jihadist logistical support network.
This group had also been used by the assassins of the anti-Taliban resistance leader, Ahmed
Shah Massoud, two days before the 11 September 2001 terrorist attacks ordered by Osama
bin Laden. One of the 2 assassins was her first husband.
- 2007: she was convicted and given a 6 month suspended sentence by the Tribunal pénal
fédéral de Bellinzone (Switzerland). She was prosecuted alongside her second husband for
“support to a criminal organisation” and “public incitement to violence and crime” through
different websites they both set up in Switzerland.
It is the first time that Switzerland has convicted somebody on the grounds of support to an
Islamist terrorist organisation.
- 2007: she was arrested in Belgium on the grounds of “attempt to help somebody escape
from prison”. Nizar T. was arrested on the 13 September 2001 and sentenced to 10 years in
2004 by the Cour d‟Appel de Bruxelles, for complicity in preparing a terrorist attack on the US
military base of Kleine-Brogel.
Malika was released on the grounds of insufficient evidence.
In an interview given to The New York Times2 released on 28/05/2008, “She calls herself a female
holy warrior for Al Qaeda. She insists (…) she has no intention of taking up arms herself. Rather, she
bullies Muslim men to go and fight and rallies women to join the cause. “It’s not my role to set off
bombs — that’s ridiculous,” (…). “I have a weapon. It’s to write. It’s to speak out. That’s my jihad.
You can do many things with words. Writing is also a bomb.””
I. Background information
The arrests:
The judicial enquiry was initiated in August 2007 following information given by the French authorities
and collected by the Federal Parquet in Belgium. According to the information, the website MINIBAR-
SOS was a Jihadist Salafist propaganda tool – mainly used by a person named Abdallah who was
calling for Jihad against France – and supposedly administered by Malika El A. and Moez G., possibly
from Belgium. This case was arranged to be tried on 22 January 2008.
In the meantime Malika El A. was mentioned in another judicial inquiry (see above) leading to a
search of her house and temporary custody on 21 December 2007. She was released the following
day due to a lack of evidence.
The arrests of most of the defendants took place on 11 December 2008. Three elements have been
taken into consideration:
- Malika El A. intended to leave to Turkey to join her husband Moez G.
2 http://www.esisc.org/documents/medias/fr/belgian-woman-wages-war-for-al-qaeda-on-the-web-161.pdf
Terrorism Convictions Monitor, Issue 8, September 2010
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- In a message intercepted from a third suspect, Hicham B., the authorities learned that he was
leaving for an operation and did not think he would come back. This message lead the Belgian
authorities to believe that a suicide attack would very soon take place either on Belgian or
French soils.
- A message from another defendant was intercepted where he was asking if “women and
children should be evacuated”.
The risk of an imminent attack seemed too high and action was taken.
Alongside Malika El A., 8 other persons were being brought to trial, two of them being tried in
absentia: Moez G. and Hicham B. Z.
II. Trial
Procedure: Ruling of the Tribunal de première instance de Bruxelles.
Date of decision: 10 May 2010
The charges
The 9 defendants were prosecuted under different charges which were separated into 3 groups of
offences, A, B and C.
Groups A and C
The charges:
Participation as a leading member (A) of a terrorist group, and in activities (C) of a terrorist
group, including providing information or material means to the terrorist group or through any
form of financing of a terrorist group‟s activity, knowing that this participation would
contribute to committing a crime or offence of that terrorist group.
Group B
The charges:
In Pakistan, on many occasions and in relation to the use of explosive substances with a
terrorist intent:
- having committed or provided such assistance in executing the offences, by means of
donations, promises, threats, abuse of authority or power, plots or tricks;
- with the intent to commit crimes against people or assets in order to cause serious harm;
- with the circumstances that, by its nature or its context, the offence can seriously harm a
country or an international organisation. And also that it is committed intentionally with the
aim of seriously intimidating a population or to unduly force public authorities or an
international organisation to take actions, or to seriously destabilise or destroy the
fundamental political, constitutional, economical or social structures of a country or an
international organisation.
Defence case:
The defence challenged the prosecution case on procedural points: the admissibility of the prosecution
and/or the validity of the evidence from a foreign origin.
a. Validity of the information obtained by the FBI
During the course of the investigation, Belgian police officers transmitted information on Malika el A.
and Moez G. including the email addresses used by Malika el A. to the FBI. All these email addresses
Terrorism Convictions Monitor, Issue 8, September 2010
22
were managed by American providers. Fourteen days later the FBI transmitted a CD concerning the
addresses along with others that were in fact closely related to each other, stipulating that this
information had been given freely by the companies MICROSOFT and YAHOO. In other words the
information was given willingly, as allowed by the „Patriot Act‟.
The Defence considered that the evidence was gathered illegally in the USA by the FBI, since no
search warrant was issued.
The Court‟s ruling: The court rejected the defence argument on the basis of a previous ruling by the
Chamber. It had confirmed the indictment on 21 January 2009, stating that “no irregularities,
omissions or cause for annulment” had been found. Furthermore following Article 235 bis § 5 from the
Penal Code, the same argument could not be examined by the Judge anymore.
b. Concerning the informal communication of the same information by the FBI
The mode of communication between Belgian Police and the FBI concerning the above exchange of
information on Malika el A. and Moez G. was informal, and did not follow the usual methods for
international exchange of judicial information.
The Defence challenges this mode of communication by saying that it violates the prescribed article 7
§ 1 of the Law of 9 December 2004 on International Mutual Assistance in Criminal Matters.
The Court‟s ruling: The exchange of information was not set up within the framework of legal
assistance (and on top of that, no examining judge had been appointed to this case at the time), but
in the less formal „police‟ framework. This was dictated by the emergency aspect of the circumstances
since a suicide note had been found posted on the website MINIBAR-SOS by one of the suspects,
leading to the belief that an attack on French soil orchestrated by Malika el A. and her entourage was
imminent.
The Federal magistrate was thus justified in arguing that this emergency police cooperation was
founded on grounds of article 15 b) of the International Convention of 9 December 1999 regarding the
repression of terrorist attacks with explosives, stipulating that, “by exchanging true and verified
information conform to the dispositions of their internal legislation and by coordinating the
administrative measures and others taken, when necessary, in order to prevent the perpetration of
infringements as stated in article 2”.
Furthermore, as this information was transmitted to the Belgian police on valid grounds by their
American colleagues, it could de facto be used by the Belgian judicial authorities.
In this case, the Court added that the analyses made on the email addresses (or most of them) were
put in the file following a Letter Rogatory executed in France.
c. Concerning the suspect interview of B. in Morocco
The statement of B. was taken in Morocco on the 20 May 2008.
The Defence of Hicham B. alleged a violation of fair trial standards since there was a suspicion that
torture had been carried out by the Moroccan authorities on detainees suspected of terrorism.
The Court ruled the defence argument inadmissible, because:
- The tribunal is neither equipped nor competent or habilitated to judge the conduct, in this
matter, of a State;
- In order to reverse the presumption of irregularity of the evidence obtained abroad, the
accused needs to provide the court with any element likely to show its irregularity.
- In a similar argumentation from 19 January 2007, the Cour d‟Appel de Bruxelles had already
rejected reports made by NGOs. It stated that these reports did not provide any concrete
Terrorism Convictions Monitor, Issue 8, September 2010
23
elements that were likely to bring any doubts on the situation in Morocco regarding violence,
torture and inhumane or degrading treatment towards people being questioned in Morocco.
The Public Prosecutor added this argumentation to the file and it was accepted by the Court.
- The person B. never mentioned any torture or violence when he was questioned by the
Belgian authorities in September 2008.
- His wife never mentioned any torture or violence concerning her husband when she was
questioned in Belgium in December 2008. The fact that she was allowed to call him in prison is
regarded by the Court as an indication that B. was not in a very strict prison environment that
would possibly inflict violence on detainees.
d. Concerning the suspect interview of Bryan Neal V. in the USA
In 2008 Bryan Neal V. travelled from The USA to Pakistan and eventually Afghanistan where he tried
to kill American soldiers in an Al Qaeda rocket attack against a military base. He was arrested in
Peshawar, Pakistan, and transferred to the USA a few days later.
He pleaded guilty in January 2009 to conspiring to murder United States nationals, providing material
to support Al Qaeda and receiving military training from the group.
The Defence of Hicham B. challenged this evidence, firstly because they were not given access to the
witness. Secondly, the circumstances of his arrest in Pakistan seemed very unclear. Thirdly, his
statement was obtained after a “plea bargain” and the offer of other advantages which could weaken
the credibility of his statement.
The Court‟s ruling: The statement made by Bryan Neal V. was admitted to corroborate other elements
of proof, because:
- The Defence could have requested access to the witness sooner. To grant the late request
would have meant a delay in trial for Hicham B. and his prolonged detention. This was not
considered appropriate since Hicham B.‟s name did not even appear once in Bryan Neal V.‟s
testimony.
- According to press releases, the witness was arrested in Pakistan and tortured by the Pakistani
authorities before being sent to the USA. The court found that a press release does not carry
enough weight to create doubt over the questioning procedure of this witness. Furthermore,
the witness was questioned by the Belgian authorities and never mentioned any irregularity.
- Nothing indicates that the statement could have been given in any other way than one which
conforms to American Law.
- The testimony of a cooperative suspect, likely to benefit from numerous advantages due to his
cooperation, cannot constitute the sole or determining element on which to base a guilty
verdict against a defendant.
The sentences
The sentences under group A charges:
- Malika El A. alias “Oum Obeyda”: 8 years imprisonment and a €5.000 fine.
- Moez G. alias “Abu Arith”, alias “Moezzedim”, alias “Al-Moustanser”: 8 years imprisonment and
a €5.000 fine (in absentia).
- Hicham B. alias “Abu Nizal”: 5 years imprisonment and a €1.000 fine (in absentia).
Terrorism Convictions Monitor, Issue 8, September 2010
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The sentences under group B charges:
- Ali El G. alias “Abu Ashim”: acquitted.
- Saïd A. alias “Abu Salah”, alias “Salahodin”: acquitted.
It is to be noted that both defendants were acquitted on the B charges but were convicted under the C
charges.
The sentences under group C charges:
- Ali El G. alias “Abu Achim”: 3 years imprisonment and a €500 fine.
- Saïd A. alias “Abu Salah”, alias “Salahodin”: 40 months imprisonment and a €500 fine.
- Hicham B. Z. alias “Abu Al Abidayne”: 5 years imprisonment and a €2.000 fine (in absentia).
- Abdulaziz B. alias “Abdulaziz Moucharraf”: 40 months imprisonment and a €500 fine.
- Muhammed El Amin B.: 40 months imprisonment and a €500 fine.
- Jean-Claude T. alias “Ahki Fillah”, alias “Youssouf Abou Soumaya”, alias “Ibn Youssouf”, alias
“Youssouf Trefman”: acquitted.
The public prosecutor asked for a severe penalty for the 2 first defendants and a mild penalty for the
third defendant. Indeed, for Malika El A. and Moez G. there was talk of „repeat offenders‟. They had
already been convicted for “support to a criminal organisation” and “public incitement to violence and
crime” through different websites they both set up in Switzerland. Their „history‟ showed without a
doubt links to Al Qaeda and a lack of respect for human life.
Article 140 §1 of the Code Pénal imposes a sentence of 5 to 10 years imprisonment and a fine from
€100 to €5.000. In that respect, the Court did follow the recommendations of the Public Prosecutor
and the verdict clearly emphasises the direct role of the three convicts in „incitement‟ and financing of
terrorism and recruitment of future soldiers. Furthermore, publishing on the Internet, since the
beginning of 2007, propaganda in view of promoting radical jihadist ideas and recruiting volunteers,
was considered by the prosecution to be also a clear indication of participation in a terrorist group as
defined in article 139 of the Code Pénal. The testimonies of Saïd A. and Hicham B. who declared to the
Court respectively “I consider myself as a victim of the Internet propaganda” and “the websites like
RIBAAT and MINIBAR influence people like me who went to fight” demonstrate the impact such sites
can have.
Hicham B. was considered to be less involved since it could not be proven that he participated in
combat in Afghanistan, nor that he came back to Belgium in order to execute an attack on behalf of Al
Qaeda.
Jean-Claude T. was acquitted since the Court decided that professing extremist opinions, even publicly
(which was the only element that was retained in his file) could not constitute a punishable act as
defined in article 140§1 of the Code Pénal.
* * *
Terrorism Convictions Monitor, Issue 8, September 2010
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The Case Management Team will continue monitoring the developments in the case and report its
outcome in the TCM, since at least one person has submitted an appeal.
Furthermore, the CMT will closely monitor a currently ongoing trial in Bari, Italy, which is linked to the
Belgian case. Indeed the 2 defendants, Bassam A. and Raphaël G. (both of French nationality) have
links to some of the convicts in the Belgian verdict and both cases share items of evidence.
Links (in short):
- evidence on a dvd of a suicide note written by one of the Belgian convicts;
- Malika El A. and Bassam A. knew each other as he celebrated Malika‟s religious wedding (to
one of the assassins of Massoud / killing ordered by Osama Bin Laden);
- Malika El A., Bassam A. and Raphaël G. visited the same religious centre in Brussels „CIB‟ –
Centre islamique belge.
The Italian prosecutors charged the 2 men with „criminal association with the aim of terrorism‟ based
on article 207 bis (paragraph 1) of the Italian Criminal Code3.
This provision sets out a term of imprisonment from 7 to 15 years for anyone found guilty of
constituting, promoting, organising, managing or financing groups that intend to carry out violent
activities in furtherance of terrorist aims or the subversion of the democratic structure of the state,
and a term of imprisonment from 5 to 10 years for individuals who associate with such groups.
3 Italian Criminal Code
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2. Judgment The United Kingdom
Court: Appeal Court, Scottish High Court of Justiciary
Procedure: Note of appeal against conviction and sentence
Date of ruling of the Court: 29 January 20104
Introduction: In 2007, a student from Alva, Clackmannanshire, UK, was found guilty of two charges
under the Terrorism Act 2000, one under the Terrorism Act 2006 and a breach of the peace. The
offences related to the setting up of websites which provided links to documents on how to operate
explosives and weapons, and to circulating terror publications via the web.
The most serious charge related to the possession of articles that gave rise to “reasonable
suspicion” they were connected to terrorism. His conviction on that charge resulted in a six-year
prison term. But at his appeal hearing in January 2010 the Court criticised the way the trial judge
explained the main Terrorist Act charge to the jury. The judge said the “material misdirection”
amounted to “a miscarriage of justice” and thus quashed the conviction. The Crown Office has decided
not to seek authority for a retrial.
The quashing of one the terrorism convictions in this file poses tough questions about Section 57 of
the 2000 Terrorism Act - the offence of possessing “articles” for terrorist purposes. In the
age of Al Qaeda inspired extremism, Section 57 has been used against suspects found with extremist
material on their computers. In 2008, the English Court of Appeal criticised the vague phraseology of
the offence as it cleared five students in very similar circumstances. All these young men say they
were criminalised for what they had thought, rather than what they did5.
I. The background circumstances – 1st Instance judgement
A. Offences and convictions
On 17 September 2007, at the High Court at Glasgow, the appellant was convicted on charges
(1), (3), (4) and (5) in the indictment that he faced:
(1) possession of articles in circumstances which gives rise to a reasonable suspicion that the
possession was for a purpose connected with the commission, preparation or instigation of an
act of terrorism, namely, computers, computer files, video files, pictures and sound files and
other files; a memory card containing computer files; mobile phones containing files and
photographic images; a number of CDs and floppy disks containing computer files and audio
files, video files and word documents depicting amongst other things terrorist propaganda,
instructions and information on making bombs, the use of various weapon systems, terrorist
and guerrilla tactics, surveillance techniques, suicide and sacrificial operations and terrorist
training camps: in violation of the Terrorism Act 2000, section 57(1) as amended6;
(3) conduct in a disorderly manner and showing to various students images of suicide
bombers and images of the murder and beheading of persons by terrorists, threatening to
become a suicide bomber and carry out acts of terrorism7, placing said students in a state of
fear and alarm and committing a breach of the peace;
4 http://www.bailii.org/scot/cases/ScotHC/2010/2010HCJAC7.html 5 Source: http://news.bbc.co.uk/2/hi/uk_news/scotland/tayside_and_central/8504952.stm 6 http://www.legislation.gov.uk/ukpga/2000/11/section/57/enacted 7 http://www.legislation.gov.uk/ukpga/2000/11/section/1/enacted
Terrorism Convictions Monitor, Issue 8, September 2010
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(4) providing instruction or training in the making or use of firearms and explosives by means
of the Internet in setting up, manage and control websites containing links to documents
providing instructions on how to operate various weaponry and to make explosives and
further, containing links to other websites containing similar documents: in violation of the
Terrorism Act 2000, section 54(1) as amended8;
(5) distributing or circulating terrorist publications by means of websites previously set up by
the appellant, containing links to terrorist publications with the intention that the effect of said
distribution and circulation be a direct or indirect encouragement or other inducement to the
commission, preparation or instigation of acts of terrorism or the provision of assistance in the
commission or preparation of such acts or being reckless as to whether such conduct had an
effect abovementioned: in violation of the Terrorism Act 2006, section 2(1)9.
Charge (2) in the indictment alleged a violation of section 58(1) (a) of the Terrorism Act 200010,
namely collecting or making a record of information of a kind likely to be useful to a person
committing or preparing an act of terrorism. However, the jury had been charged to the effect that
charge (2) was an alternative to charge (1) and that, in the event of the jury convicting on charge (1),
which they did, they would not require to consider and return a verdict on charge (2).
B. Sentence
On 23 October 2007 the appellant was sentenced to:
- 6 years' imprisonment in respect of charge (1);
- 6 months' imprisonment in respect of charge (3);
- 2 years' imprisonment in respect of charge (4);
- 1 years' imprisonment in respect of charge (5).
The period of imprisonment imposed on charge (3) was ordered to run concurrently with that on
charge (1); the periods imposed on each of charges (4) and (5) were ordered to run concurrently but
to run consecutively to the period imposed on charge (1).
II. The defence grounds of appeal
On 17 April 2008, the appellant lodged a Note of Appeal against both conviction and sentence.
Leave to appeal has been granted in respect of grounds (2), (3) and (4), as regards conviction, and
also in respect of sentence:
(2) Misdirection by the trial judge
Concerning charge (1), the trial judge failed to adequately direct the jury that they had to be
satisfied that the appellant possessed the articles in circumstances that gave rise to a
reasonable suspicion that he intended that they be used for the purposes of the commission,
preparation or instigation of an act of terrorism. The trial judge failed to adequately direct the
jury that they had to distinguish and discriminate between 'propaganda or ideological material'
and other material in the possession of the appellant when assessing the Crown case. The trial
judge, failed to adequately make clear that they had to be satisfied that there was a direct
connection between the articles possessed by the appellant and an intended act of terrorism.
[…]
The failure to do so resulted in inadequate and inappropriate directions being provided to the
jury as a result of which the appellant did not receive a fair trial.
8 http://www.legislation.gov.uk/ukpga/2000/11/section/54/enacted 9 http://www.legislation.gov.uk/ukpga/2006/11/section/2 10 http://www.legislation.gov.uk/ukpga/2000/11/section/58/enacted
Terrorism Convictions Monitor, Issue 8, September 2010
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(3) Reasonable excuse
Section 58(3) of the Terrorism Act 2000 provides for a statutory defence of reasonable
excuse. The trial judge misdirected the jury as to what amounted to a reasonable excuse in
giving a too narrow description.
(4) Unbalanced charge
The trial judge re-stated to the jury the evidence presented by both the Crown and the
defence. He failed to present a balanced picture. In particular: (i) he repeated in detail the
evidence relied upon by the Crown in sharp contrast to the evidence relied upon by the
defence; […] The trial judge […] gave an extensive recital of the Crown documents, indicating
titles and contents before summarising the same. The Crown itself had made minimal
reference to these documents. On the other hand, the trial judge's reference to the defence
case extended to a mere 2 page.
III. The submissions of the appellant
- It was necessary to examine in detail the requirements of section 57 of the 2000 Act, invoked
in charge (1) in the indictment:
In order to establish guilt, it was crucial to ascertain that the article in possession of
the defendant was held “in circumstances which give rise to a reasonable
suspicion that [it] is for a purpose connected with the commission,
preparation or instigation of an act of terrorism”. This part of section 57 did not
require the identification by date, time and place of some act of terrorism, but it did
require the identification of an act of terrorism, as opposed to some general
tendency of a terrorist nature. The trial judge had referred to material which might
be seen as propaganda; the dissemination of material such as that did not constitute
any crime under section 57 of the 2000 Act.
- The appellant had said that he had had an ambition to become a suicide bomber, but that was
merely a declaration of intent. In relation to much of the material described in evidence, it
could be said that it amounted only to propaganda, which did not come within the scope of
section 57.
- In essence, there was material in the possession of the appellant which had gone beyond
mere propaganda; however that material was widely available; it was not in any sense secret,
nor had it been surreptitiously acquired.
- The trial judge failed to direct the jury that they required to be satisfied that the
appellant possessed an article that gave rise to a “reasonable suspicion” of the kind
set forth in section 57(1); in his directions to the jury, the trial judge had omitted to stress
that element of the legislation.
IV. The submissions of the Crown
- In the application of section 57(1) of the 2000 Act […] there were four stages involved. First, it
was necessary to look at the articles, their description, and their significance and hear any
expert evidence that might be relevant to them. Secondly, it was necessary to look at the
circumstances of possession, the nature of the combination of articles, such issues as
concealment, and any statements of the purpose of possession that were available. Thirdly,
the question had to be asked whether those circumstances gave rise to a reasonable
Terrorism Convictions Monitor, Issue 8, September 2010
29
suspicion that the possession of the articles was intended to be used for the purpose
of any act of terrorism. If the circumstances did yield such a reasonable suspicion, beyond
reasonable doubt, then the person accused would be guilty. Fourthly, in such an event, the
provisions of section 57(2) and 11811 might operate to provide a defence. Taking an approach
such as that, the Crown conceded that for an accused person to say, as the appellant had
done here, that he possessed articles on account of his “curiosity” would be to state a relevant
defence. Nevertheless, there was in the evidence an ample basis for conviction, despite that
contention. The Crown at the trial […] had submitted that the appellant's possession of the
material to which he referred had been for a terrorist purpose. Although he stated that it was
not necessary for him to satisfy the jury as to the particular terrorist purpose that was
evident from the evidence and was the appellant's purpose to become a suicide
bomber.
- Turning to the trial judge's directions to the jury, two questions arose: first, were the essential
components or any of them missing? Second, if so, was there, in consequence, a miscarriage
of justice? It had to be borne in mind that a trial judge was not under necessity of adopting a
legalistic approach; indeed, to do so could well be counter-productive. It might be said that
there was indeed misdirection, taking the form of the omission of reference to
“reasonable suspicion”; but, if that were the case, there was no miscarriage of
justice. The expert evidence had been dealt with in a faultless manner.
- In dealing with what he called this “statutory minefield” a judge should stick to the statutory
scheme [...]. However, the departures from that course in the present case did not amount
to a miscarriage of justice because either they raised the “bar” that the Crown had to cross
for a conviction to a level higher than it should be, or they were generous in characterising the
defence of curiosity in the way that they did.
V. The Decision
The Appeal Court quashed the appellant's conviction on charge (1)
Rationale:
- While it is evident that, at the very outset of his consideration of the offence alleged in charge
(1) of the indictment, the trial judge followed the statutory language of section 57(1), almost
immediately he then departed from the use of that language and, throughout the rest of his
charge, he treated the offence as if section 57(1) contained no reference to
“circumstances which give rise to a reasonable suspicion”. […] The Appeal Court agreed
that this amounted to a material misdirection. […] In the opinion of the Appeal Court, there
is a crucial relationship between the statutory language used in section 57(1) and
the defence created by section 57(2). The provisions of section 57(2) can properly
operate only properly upon the basis of the strict application of the statutory
language used in section 57(1) as the definition of the offence and, in particular, the
use there of the words “in circumstances which give rise to a reasonable suspicion
that....”.
- Upon the basis of the directions given to the jury, there was a serious likelihood of confusion
in their minds regarding the nature of the offence created by section 57(1), and the operation
of the statutory defence available under section 57(2) of the 2000 Act. Therefore, the Court of
Appeal ruled that the giving to the jury of the directions to be found in the charge
11 http://www.legislation.gov.uk/ukpga/2000/11/section/118/enacted
Terrorism Convictions Monitor, Issue 8, September 2010
30
relating to these matters amounted not only to misdirection, but also to a
miscarriage of justice. In this case, there was a defence of what has been referred to as
“curiosity”, as an innocent explanation for the appellant's possession of the articles in
question. That being the background, it was of particular importance that accurate directions
should be given on the matters concerned. […] section 57 requires to be interpreted in a
way that requires a direct connection between the object possessed and the act of
terrorism. […] There should have been clear directions to that effect, which there were
not. That amounts to misdirection, which, in the circumstances of this case must be
seen as a miscarriage of justice.
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Appendix: Contact and Analysis Team
Contact Michèle Coninsx, National Member for Belgium and Chair of the
Counterterrorism Team at EUROJUST
+31 (0)70 412 5120
Analysis Team Alinde Verhaag, Case Management Analyst
Petya Ibens, Assistant to the Case Management Analysts
Ioana Lugojan, Assistant to the Case Management Analysts
Christine Vigneron, Assistant to the Case Management Analysts
