The summary of the decision of the Court of Appeal in R v. Samina Malik (aka the Lyrical terrorist) is provided below. The Court of Appeal has her conviction overturned.
R v Malik  All ER (D) 201 (Jun)
Court of Appeal, Criminal Division
Lord Phillips of Worth Matravers CJ, Goldring and Plender JJ
17 June 2008
The defendant was arrested by police officers at her home address where she lived with her parents and siblings. The premises were searched and a number of items seized. They included a computer as well as a number of publications which appeared to support violent jihad, a number of poems written by the defendant using her pen-name ‘the lyrical terrorist’ and a number of documents containing writings on subjects such as weapons and interrogations. Subsequently, the hard drive of the computer was analysed and found to contain the material later relied upon by the prosecution at her trial for terrorism offences.
Following her arrest, the defendant wrote several pages of notes in which she gave an account of how, two or three years earlier, she had been influenced by radical Islamic preachers and, as a result, had downloaded articles, books, talks and videos from the Internet and had started to write poetry about killings and beheadings. That was something she had come to regret and, for around two years, had had no further dealings with extremist material.
The defendant was charged with alternative counts of offences contrary to ss 57 and 58 of the Terrorism Act 2000. Count one alleged that the defendant had had ‘in her possession an article, namely, a computer hard drive with a collection of documents on it, in circumstances which gave rise to a reasonable suspicion that her possession of it was for a purpose connected with the commission, preparation or instigation of an act of terrorism’, contrary to s 57 of the Act. Count two alleged that she had had ‘in her possession a record, namely, a computer hard drive with a collection of documents on it, which contained information that was likely to be useful to a person committing or preparing an act of terrorism’, contrary to s 58 of the Act.
The prosecution provided particulars of the documents upon which it relied in support of its case, which had been recovered from the hard drive. They included: ‘Women in Jihad’; ‘How to Check a Car for Bombs’; Essential Provision of the Mujahid’; ‘What Role can Sisters Play in Jihad?’; ‘Precaution, Secrecy and Concealment’; ‘An Introduction to Jihad’; ‘Acquiring Military Training’; ‘Essay Regarding the Basic Rule of the Blood, Wealth and Honour of the Disbelievers’; a manual for the 7.62mm Dragunor Sniper Rifle; ‘First Aid’; ‘The Terrorists Handbook’, ‘The Mujahideed Poisons Handbook’, ‘How to Win Hand-to-Hand Fighting’; a firearms and RPG handbook; an operator’s manual for the M9 pistol; ‘The Al-Qaeda Manual’; ‘Obstacles Mines and Demolition’; and an operation manual for the 66mm light anti-tank weapon. The documents had come from folders on the hard drive entitled ‘Samina’z Stuff’ and ‘Copy of Handbooks’. The documents in the latter folder had been downloaded, opened, then deleted.
At the close of the prosecution case, the defendant submitted that there was no case to answer. She submitted that (i) the prosecution had failed to prove that she had been in possession of the material on the relevant date; (ii) that the material was, in any event, incapable of being used to advance an act of terrorism; and (iii) that the prosecution had failed to prove that the material was possessed for a terrorist purpose.
The judge ruled that there was a case to answer because the material found on the hard drive could be linked to the defendant through the folder ‘Samina’z Stuff’ and because the material was capable of being used to advance an act of terrorism, and it was for the jury to decide whether it had been possessed for a purpose connected with the commission, preparation or instigation of an act of terrorism (s 57) or was of a kind likely to be useful to a person committing or preparing for an act of terrorism (s 58). The defendant was acquitted on count one but convicted on count two. She appealed against her conviction.
She submitted, inter alia, (i) that there was no case to answer on count two; (ii) the judge had misdirected the jury on the ingredients of the offence under s 58 in that he had failed to direct them that a document or a record would only fall within that section if it was of a kind that was likely to provide practical assistance to a person committing or preparing an act of terrorism; (iii) the conviction could have been returned in relation to material which, as a matter of law, should not have been included in the count two; and (iv) the judge had misdirected the jury on the meaning of the expression ‘reasonable excuse’.
The prosecution conceded that the conviction was unsafe. It submitted that the judge had been correct to rule that there was a case to answer, but that the majority of the items relied upon by the prosecution did not fall clearly within the scope of the offence contrary to s 58; that the judge had not directed the jury that a document or record would only fall within the section if it was of a kind that was likely to provide practical assistance to a person committing or preparing an act of terrorism; that it was possible that the jury’s verdict of guilty was based on material which should not have been included in count two; and that the judge’s direction on the meaning of reasonable excuse was erroneous in the light of recent authority. In relation to the submission of no case to answer, it submitted that of the items relied upon, only seven were capable of falling within s 58, namely, the manuals for the rifle, pistol and anti-tank weapon; the ‘Terrorists Handbook’; the ‘Mujahideed Poisons Handbook’; the ‘Firearms and RPG Handbook’; and the ‘Obstacles Mines and Demolition’. Consideration was given to the judgment of the Court of Appeal in R v K , which was given after the instant defendant’s conviction.
The appeal would be allowed.
There had been a case to answer, based on the seven documents identified by the prosecution; however, the problem was that the case had been left to the jury on the basis that the other documents were also capable of forming the basis of the conviction. In relation to the issue of ‘practical assistance’ to a person committing or preparing an act of terrorism, the jury had not received a direction as to the issue of practical utility. There was not a great deal of difference in directing the jury that the document or record had to be likely to be useful, and directing them that it was likely to be of practical utility. In the right context that direction might be unexceptionable. However, the primary problem in the instant case was that the jury had considered not merely documents which were capable of practical utility but also a large number which were not. There was scope in the instant case for the jury to have become confused. In all the circumstances, the conviction was unsafe.
The conviction would be quashed.
R v K  All ER (D) 188 (Feb) applied.