The use of the Internet

CHAPTER III. POlICy AND lEGISlATIvE FRAMEwORKS
On the facts of the case, noting that it raised difficult questions of interpretation about the
scope of application of section 57, the Court held that the necessary connection was not
present, and therefore the resulting convictions were unsound, and allowed the appeals.
99. Section 58 of the Act has proven particularly useful in several cases in which
authorities have needed to intervene when there was no evidence that the individual
was engaged in activity associated with terrorism. The section makes it an offence to
collect, make or have in one’s possession, without a reasonable excuse, any record of
information of a kind likely to be useful to a person committing or preparing an act
of terrorism or to have possession of any document or record containing such
information.
100. In R v. K [2008] 3 All E.R. 526, the Court held that a document falls within
the scope of section 58 only if it is of a kind that is likely to provide practical assistance
to a person committing or preparing to commit an act of terrorism. This approach was
reaffirmed in R v. G and J [2009] UKHL 13, in which the Court reaffirmed this
“practical use test”, under which possession of a document or record is a crime only
if it is of practical use and was possessed by a person without a reasonable excuse. 85
There is no restriction on what might constitute a reasonable excuse for this purpose,
provided that it is capable in law of amounting to a defence.
101. Under section 58, the prosecution is not required to prove that the accused is
a terrorist or that any items are possessed for a terrorist purpose; however, the prosecution
may only in very limited circumstances call extrinsic evidence to prove the practical
utility of any item. For example, evidence of cipher may be called in order to decipher
a document written in code, but no evidence may be called to explain the significance
of locations circled on a map. The information must “speak for itself” and not be of
a type in general circulation.
102. In R v. Sultan Mohammed [2010] EWCA Crim 227, the court held that
“[p] rovided that the document containing the information is not one in every day use
by ordinary members of the public (e.g. published timetables and maps) and provided
that a reasonable jury could properly conclude that the document contains information
of a kind likely to be useful to a person committing or preparing an act of terrorism,
then it will be a matter for the jury whether they are sure that it contains such
information. If so, and provided the defendant has the necessary mens rea, then the
only issue will be whether the defendant has a reasonable excuse.” 86 The jury must
accordingly decide whether the explanation given for possessing the document is in fact
reasonable given the particular facts and circumstances of the case. 87
85 Ibid., p. 962.
86 Quotation from “R. v. Muhammed [2010] EWCA Crim 227: terrorism—preparing an act of terrorism”, Criminal
Law and Justice Weekly (20 March 2010).
87 Hemming, “The practical application of counter-terrorism legislation in England and Wales”, p. 963.
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