Case No. UKUT-00137-(IAC)

[1999] 9 IHRR 1051 that mens rea is defined in a way which recognises that when the accused is participating in a common plan or purpose not necessarily to commit any specific or identifiable crime but to further the organisation ’ s aims by committing Article 1F crimes generally, no more need be established than that they had personal knowledge of such aims and intended to contribute to their commission (at paragraph 37) . Mr Mackenzie also referred to what was said by Lord Hope at paragraph 49. H e noted t hat the words “serious reasons f or considering” were of course taken from Article 1F itself and that the words “in a significant way” and “will in fact further that purpose” provided the key to the exercise and were the essential elements that were required to be satisfied to fix the applicant with personal responsibility. 20. We do not see this as a basis for supporting Mr Mackenzie’s argument. We agree with Mr O’Connor that the use of Article 1F in these parts of the judgments in JS are effectively shorthand. That can in part be seen from what is said at paragraph 37 where there is reference to “Article 1F crimes generally”. 1F(c) is not of course concerned with crimes although we accept that the conduct falling within 1F (c) may amount to criminal conduct but it is not a prerequisite , and it seems to us clear that the reference at paragraph 37 f or example is a reference to 1F(a) and perhaps 1F(b) also since both of those are concerned with crimes. So we do not accept that the references to Article 1F in JS can be taken as clearly intending the personal responsibility elements to apply to all limbs of Article 1F, as Mr Mackenzie argued. 21. His second argument in this respect was that when one examines the structure of Article 12 of the Qualification Directive it is clear that Article 12(3), applying paragraph 2 as it does to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein is applicable to all three limbs of Article 12. However we do not consider that it follows from the fact that paragraph 12(3) of the Qualification Directive applies to all of Article 12(2) that the same r ules on secondary liability apply to all three limbs of Article 12(2). All paragraph (3) does in effect is to e xtend the applicability of Article 12 (2) to people instigating or otherwise participating in the commission of the crimes or acts mentioned in Article 12(2) , but that says nothing that could justify the conclusion that the secondary liability provisions apply in the same the way to all three limbs of Article 12(2). 22. Nor do we agree with the further argument that it would be surprising if different elements of secondary liability were applicable to the three limbs of Article 12(3), given the fact that as is clear, for example from paragraph 3 of Al-Sirri , a particular act may fall within more than one of the three categories . I n particular terrorism, which is relevant in the case before us, may be both a “serious non-political crime” and an act “contrary to the purposes and principles of the United Nations”. 23. The point of distinction as it seems to us, is the distinction between crimes and other acts. Article 1F(a) and (b) are both concerned with crimes and it is not surprising therefore that r ules emanating for example from the ICC Statute should be regarded as applicable to both of those limbs, though applicability to 1F(b) must be a matter in our view for future litigation since JS was concerned with 1F(a) only. But t he fact that there may be an overlap does not in our view justify the conclusion that there is anything surprising or curious about the fact that different elements of secondary liability may apply to the different heads under Article 1F bearing in mind the different types of matter with which they are concerned. The fact that a particular act may fall within 1F(c) and at the same time fall under (a) or (b) does not in our view invest it with the necessarily criminal character of a kind which would require incorporating the ICC Statute provisions into our assessment of the Rules pertaining to 1F(c). 24. Nor do we accept Mr Mackenzie’s fourth point that the fact that what was set out at paragraph 15 in Al-Sirri was said at the end of that paragraph to be consistent with the approach adopted by the Supreme Court in JS means that the assimilation argued for by Mr M ackenzie is made out. W e read the last sentence of paragraph 15 in Al-Sirri as doing no more than noting the consistency of the approach in emphasising the need for an individualised assessment to establish individual responsibility with what is said at paragraphs 33 to 39 in JS which is similarly concerned with “individual criminal responsibility ” , as referred to at paragraph 34 and the final sentence of paragraph 38, summarising the court’s conclusions and emphasising the voluntary contribution by the person in a significant way to the organisation ’ s ability to pursue its purpose of committing war crimes. That in our view is far from being an endorsement of the argument that the ICC Statute approach is applicable in the context of Article 1F(c). The latter, as we have said, is not a provision concerned with the commission of a crime, and we do not accept Mr Mackenzie’s argument that whether on the basis of what was said in JS or on any other basis can it properly be said to be a requirement of Article 1F(c)’s applicability that it is necessary to show anything beyond incitement and /or encouragement of acts of international terrorism without such acts having to be shown to have taken place. 25. The further issue, in light of our conclusions on the point of law, that we have to consider is whether the respondent has shown that there are serious reasons for considering that the appellant has knowingly incited and encouraged acts of international terrorism contrary to the purposes and principles of the United Nations. As was noted at paragraph 37 in Al-Sirri , there is as yet no internationally agreed definition of terrorism, bu t as the court pointed out at paragraph 39, as we have set out above, it is very likely that inducing terror in a civilian population or putting such extreme pressures upon a government would also have the international repercussions referred to by the UNHCR at paragraph 17 of its guidelines which were adopted by the court at paragraph 38. We have also set out above paragraph 75 from Al-Sirri containing the Supreme Court’s guidelines as to the proper approach in discerning the autonomous meaning of the words “serious reasons for considering”. In this regard it is also relevant to note that, as was said by Stanley Burnton LJ in