Not just for journalists: the Court of Appeal opens up the section 2(9) terrorism defence, then raises the bar

Is the statutory defence to disseminating a terrorist publication reserved for journalists, academics and librarians? On 7 August 2026 the Court of Appeal (Criminal Division) said no — but attached a heavier burden than either side had assumed. In R v Zaheed Hossen [2026] EWCA Crim 1065, the Court refused the appeal against conviction and dismissed the appeal against sentence.

What the case was about

The appellant faced five counts of disseminating a terrorist publication contrary to section 2(1) of the Terrorism Act 2006 (para 1). The counts concerned two publications, ‘The Book of Jihad’ and ‘44 Ways to Support Jihad’, both undisputedly terrorist publications (para 6); his sending them to four people by WhatsApp and Telegram was not disputed (para 7). His case was that they neither expressed his views nor had his endorsement, and were sent for discussion (paras 9, 15). The judge directed the jury on both intention and recklessness (para 11). Only after the jury retired and sent a note about “reckless” and “indirect” did the defence submit that the section 2(9) defence should be left to them. The judge refused, holding it confined to those disseminating for legitimate purposes — an academic or journalist, say — with the appellant outside that class (para 14). He was convicted on all counts and sentenced to seven years in total (para 2).

What the Court of Appeal decided

Ms Justice Norton gave the judgment, sitting with the Vice-President, Lord Justice Edis, and Mr Justice Choudhury. Under section 2(10)(b) the defence arises only where intention has not been proved: it answers recklessness alone (para 21). Nothing in the section, or in the Explanatory Notes, limits who may rely on it (para 22). Parliamentary material showed a concern to protect journalists, academics and librarians, but Explanatory Notes have limited relevance to construction, letters to committees are “even less admissible”, and an occupational limit would generate “arid and ultimately inconsequential arguments” about who counts as a “journalist” or a “teacher” (para 26). The defence is available irrespective of personal status (para 27).

That success was short-lived. Both limbs must be satisfied (para 28), and the second — that it was “clear, in all the circumstances” that the material was neither his view nor endorsed by him — means objectively clear (para 30). Although both parties had agreed the burden was evidential only, the Court considered section 2(9) imposes a legal burden (para 31): the words “it is a defence for him to show” clearly place a legal burden (para 32), and Sliney v London Borough of Havering [2002] EWCA Crim 2558, which called that formulation “classic language” for the purpose, treated “show” as synonymous with “prove” (para 33). The three conclusions on construction sit at para 36.

The defence was never foreshadowed in the defence statement nor raised before summing up, and the directions and route to verdict were agreed (para 38); and counsel could point to no evidence capable of satisfying the objective second limb (para 39). The judge was right to refuse to leave it, though for different reasons (para 40). The sentence appeal also failed: where the factual basis of a verdict is unknown it is for the judge to decide, following R v Cloud [2001] EWCA Crim 510 (para 43), and this judge was entitled to find an intention to encourage acts of terrorism (para 44).

Why it matters

• No occupational gateway. Anyone facing the recklessness limb may run the defence; the trial ruling that it belongs to academics and journalists was wrong (paras 26, 27).
• Limb two does the real work. The test is objective, and an assertion of non-endorsement will in many cases be insufficient (para 30).
• A legal burden, on the balance of probabilities. The Court accepted this was not strictly necessary (para 31), but its conclusion displaces the position both counsel had agreed (para 36).
• Raise it early. A route to verdict taking intention first, then recklessness and the defence, would not have been unduly complicated (para 37).

Read the full judgment: R v Zaheed Hossen [2026] EWCA Crim 1065 (The National Archives).