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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ivanova & Ors v R. [2024] EWCA Crim 808 (16 July 2024) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/808.html Cite as: [2024] EWCA Crim 808

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON AN INTERLOCUTARY APPEAL FROM THE CENTRAL CRIMINAL COURT
MR JUSTICE HILLIARD

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/07/2024

This judgment was handed down remotely at 10.30am on 16 July 2024 by circulation to the parties or their representatives by e-mail and on 13 March 2025 by release to the National Archives.

Dame Victoria Sharp, P.:

1. This is an interlocutory appeal under section 35 of the Criminal Procedure and Investigations Act 1996 (the 1996 Act) with the leave of Hilliard J (the judge) against his ruling at a preparatory hearing held pursuant to section 29 of the 1996 Act.
2. Reporting restrictions under section 37(1) of the 1996 Act apply. Accordingly, no report of this appeal shall be published or included in a programme for reception in the United Kingdom save (i) to the extent permitted by section 37(9) of the 1996 Act or (ii) in accordance with section 37(8) of the 1996 Act, at the conclusion of the trial of the accused or the last of the accused to be tried.
3. The six defendants in this case are charged on an indictment containing two counts. Count 1 alleges a conspiracy to spy, contrary to section 1(1) of the Criminal Law Act 1977 (the 1977 Act). Count 2 charges three of the defendants with possessing identity documents with an improper intention contrary to section 4(1) and 4(2) of the Identity Documents Act 2010 (the 2010 Act). The trial date has been fixed for 28 October 2024. This appeal concerns count 1 only. Two only of the defendants are appellants (BFZ and BFU, the first and third named defendants on the indictment), but this is not a point of significance. The issues raised in the appeal apply to the defendants without exception, and as at the hearing below, the arguments pursued by the defendants are advanced on behalf of all of them. For convenience, we will continue to refer to the appellants to this appeal as the defendants.
4. The allegation in count 1 is one of a conspiracy to breach the provisions of section 1(1)(c) of the Official Secrets Act 1911 (the 1911 Act^[1]) contrary to section 1(1) of the 1977 Act. The particulars of count 1 (as amended ^[2]) now allege that the defendants "between the 30^th day of August 2020 and the 8^th day of February 2023 conspired together and with Jan Marsalek and others unknown to obtain, collect, record, publish or communicate documents or information which was intended to be directly or indirectly useful to an enemy for a purpose prejudicial to the safety and interests of the State."
5. Section 1 of the 1911 Act (now repealed) provided as follows:

"(1) If any person for any purpose prejudicial to the safety or interests of the State –

(a) approaches, inspects, passes over, or is in the neighbourhood of, or enters any prohibited place within the meaning of this Act; or

(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; or

(c) obtains, collects, records or publishes or communicates to any other person any secret official code word, or password, or any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; he shall be guilty of a felony.

(2) On a prosecution under this section, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case, or his conduct, or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place within the meaning of this Act, or anything in such a place, or any secret official code word or pass word, is made, obtained, collected, recorded, published, or communicated by any person other than a person acting under lawful authority, it shall be deemed to have been made, obtained, collected, recorded, published, or communicated for a purpose prejudicial to the safety or interests of the State unless the contrary is proved."

6. Section 1(1) and (2) of the 1977 Act provide as follows:

"(1) Subject to the following provisions of this part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –

(a) Will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

(b) Would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.

(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place."

7. Two core issues are raised in this appeal, both of which raise issues of law in relation to the ingredients of the offence under section 1 of the 1911 Act. The first issue concerns the interpretation of the phrase "for any purpose prejudicial to the safety or interests of the State" in section 1(1) of the 1911 Act; the second concerns the meaning of the word "enemy" in section 1(1)(c) of the 1911 Act.
8. In summary, the submission of the defendants on the first issue is that the "purpose prejudicial" test is a subjective one. Even if the test is an objective one however, "purpose prejudicial" is nonetheless either part of the mens rea of the substantive offence, or a "fact or circumstance" which falls within section 1(2) of the 1977 Act, such that the defendants could not be convicted unless the jury were sure that the defendants had intended a purpose prejudicial to the safety or interests of the United Kingdom. And it would follow that the decision of the House of Lords in Chandler and ors v DPP [1964] AC 763 was wrongly decided or at the very least should not be followed. The submission on the second issue is that the word "enemy", in section 1(1)(c) of the 1911 Act, properly construed, including by reference to the interpretation given to it in R v Parrott [1913] 8 Cr App R 186, means a country with which the United Kingdom is at war, or is likely to be in the foreseeable future.
9. For the reasons given below, we conclude that the defendants' arguments are not well-founded. We uphold the judge's conclusions, largely for the reasons he gave.

The factual background

10. It is unnecessary to do more than refer to this briefly. The prosecution case is that the defendants, all Bulgarian nationals, agreed to conduct surveillance operations upon a series of human "targets" and buildings of interest to the Russian Federation and agreed that the work product of the operations would be given to an agent of the Russian Federation, Jan Marsalek, for the benefit of organs of the Russian State. Most of the relevant conduct, i.e. the surveillance operations, occurred abroad. It is further alleged that by conspiring to obtain information of this type, intended to be directly or indirectly useful to an enemy, "they acted with a purpose, that was a purpose which was prejudicial to the interests of the State."
11. The prosecution's contention at trial will be that the overarching conspiracy encompassed six "sub-operations" all of which were directed by Jan Marsalek. The detail does not matter for present purposes. We note that one of these "sub-operations" entailed undertaking surveillance at Patch Barracks, a US miliary base in Stuttgart, in late 2022. Further, the joint possession of false identity documents by three of the defendants is said to have been an integral part of the conduct flowing from the overarching conspiracy.
12. The prosecution intend to call evidence at trial from a deputy National Security Advisor dealing amongst other things with the existing national security threat posed by Russia and the question of prejudice to the safety or interests of the UK.
13. Five out of the six defendants have served defence case statements. The defendant yet to do so was charged at a later date. The prosecution takes issue with the adequacy of the defence case statements, but this is not an issue for us to resolve. The defendants do appear to accept that they were engaged in obtaining information about certain individuals and locations. One of the defendants says that none of his activity was carried out in order to assist Russia. Another claims that he was working for representatives of Mossad. Another says that she was working under the direction of a co-defendant in the belief that the latter worked for Interpol. The others suggest in different ways that they did not know the true context.

The judge's ruling

14. The judge heard argument on the 16 and 17 May 2024. The arguments on the first issue were advanced by Mr Mark Summers KC, and those on the second issue by Mr Rupert Bowers KC. Counsels' arguments are largely the same in this Court although before us there has been a greater emphasis on the decision of the House of Lords in Pepper v Hart [1993] AC 593.
15. In relation to the first issue, that is whether "purpose prejudicial" was a subjective or objective element of the offence, it was common ground that the Crown Court was bound by Chandler, although the defendants maintained that the decision should now be regarded as wrongly decided (or at least should not be followed) – it having predated the enactment of the Human Rights Act 1998 (the 1998 Act) and the modern law of conspiracy – specifically, the decision of the House of Lords in R v Saik [2006] UKHL 18; [2007] 1 AC 18.
16. In relation to the second issue, that is the meaning of the term "an enemy", counsel submitted that this Court in Parrott set out a comprehensive test which should not be expanded. In short, the prosecution had to prove that "an enemy" is a country with which the UK is at war or is likely to be in the foreseeable future.
17. The judge delivered his written ruling to the parties on 31 May 2024.
18. On the meaning of the phrase, "purpose prejudicial to the safety or interests of the State", the judge's conclusion was as follows:

"27. Chandler establishes that it is then necessary to prove that any purpose for which the act of obtaining etc or communicating such material was done was prejudicial to the safety or interests of the State. It might be an immediate purpose or a longer term purpose, direct or indirect. It could be any one of a number of purposes, but the prosecution must prove that the conduct I have identified, in one possible instance of the substantive offence accompanied by a specific intention that the material be useful to an enemy, was carried out for a purpose which was prejudicial to the safety or interests of the State. It does not matter whether a defendant intended to prejudice the safety or interests of the State or not. All that needs to be established is that from an objective standpoint, one purpose for which the obtaining etc of such material was done was prejudicial to the safety or interests of the State."

19. The judge further concluded that this conclusion was not invalidated, as he put it, by consideration of the terms of section 1(2) of the 1911 Act. Nor in his view did section 1(2) of the 1977 Act alter the position. This was because "the need for a purpose to have a prejudicial effect is in the nature of a consequence rather than a qualifying fact or circumstance."
20. Finally, the judge did not accept that the term "enemy" necessarily required proof of a realistic prospect of armed conflict with another State, here Russia, in the foreseeable future; although if that prospect were proven the statutory test would be fulfilled. In the judge's opinion, a broader approach was justified. In short:

"35. Without myself trying to be comprehensive, but within the ambit of the present case, it seems to me that any State which presently poses an active threat to the UK's national security can properly be described as "an enemy" in ordinary language. It will be for the jury to determine whether the test is met on such evidence as is called. …"

Grounds of Appeal

21. The defendants lodged applications for leave to appeal pursuant to section 35 of the 1996 Act and Crim PR 37.4(2)(b), and the judge granted leave to appeal on 13 June 2024.

The submissions of the parties

22. The Grounds of Appeal advanced on behalf of the appellant BFU by Mr Bowers are as follows. By Ground 1, it is contended that the judge was wrong to find that the offence under section 1 of the 1911 Act carries an objective test in respect of "purpose prejudicial". By Ground 2 it is said that the judge was also wrong to find that the term "enemy" embraces a State which is "hostile" to the UK as opposed to a State with whom there is foreseeability of armed conflict. By Ground 3, it is argued that the judge was wrong to hold that "purpose prejudicial" was not a fact or circumstance caught by section 1(2) of the 1977 Act.
23. The Grounds of Appeal advanced on behalf of the defendant BFZ by Mr Summers are as follows. By Ground 1, it is contended that the "purpose prejudicial" test is conjunctive and subjective, and that Chandler was wrongly decided. Further, it is argued that the law has in any case moved on since 1962 and that recourse may now be had to the Parliamentary debates on the Official Secrets Bill in 1911 as well as the principle of legality under common law and Article 7 of Schedule 1 to the 1998 Act. By Ground 2 it is contended that the "purpose prejudicial" test must be recast in the light of section 1(2) of the 1977 Act. Consequently, "purpose prejudicial" is either part of the actus reus of the statutory offence, constituting it an objective "fact or circumstance" to which Saik attaches a requirement to prove that the appellants intended that fact or circumstance; or, alternatively, is part of the mens rea element of the offence, which Saik elevates to a subjective requirement of intention or knowledge, per the decision of this Court in R v Ali (Arie) [2019] EWCA Crim 2448; [2020] 4 WLR 33. Mr Summers' Ground 3 is the same as Mr Bowers' Ground 2.
24. On what we are calling the first issue, Mr Summers drew attention to the wording of the Official Secrets Act 1889 which he said clearly imported a subjective test. An examination of the Parliamentary debates on the Official Secrets Bill in 1911 shows that the intention was not to alter the subjective nature of the test but to ease the prosecution's evidential difficulties in proving that intent: hence the reverse burden of proof in section 1(2). Moreover, submitted Mr Summers, an examination of the wording of section 1(2) underscores the subjectivity of the test: the provision refers in terms to "his purpose".
25. Mr Summers submitted that the House of Lords in Chandler "struggled" with the correct meaning of the "purpose prejudicial" test. Here, it is relevant that each of their Lordships gave different reasons for the overall conclusion and provided no reasons for their holding that the "purpose prejudicial" test was objective. In any event, it is said that the lapse of time since 1962 means that (1) reference to the 1911 Parliamentary debates is now permissible, and (2) regard may be had to the provisions of the 2023 Act, which show that the 1911 Act is no longer fit for purpose. On the same theme, there are passages in the Law Commission's Report (Law Com No 395), "Protection of Official Data", published in 2020, which Mr Summers says demonstrate that Chandler could not be supported. Mr Summers also relied on academic commentary which, he submitted, was almost universally hostile to the decision in Chandler. Mr Summers submitted that the root of many of the criticisms of Chandler is its failure properly to acknowledge established canons of statutory interpretation such as the presumption in favour of mens rea and the "universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted": see Sweet v Parsley [1970] AC 132, per Lord Reid at page 149.
26. Separately, and as the second limb of his argument in connection with the first issue, Mr Summers submitted that the effect of Saik was that it did not matter whether "purpose prejudicial" was part of the actus reus or the mens rea: either way the prosecution was caught on the horns of a dilemma and the defendants should prevail. The critical wording of section 1(2) of the 1977 Act is "fact or circumstance". Either "purpose prejudicial" should be seen as a "fact or circumstance" and an aspect of the actus reus of which the defendants must have actual knowledge (as regards past facts) or intention (as regards future facts), or it is part of the mens rea of the statutory offence and the same outcome is achieved.
27. In his skeleton argument Mr Bowers advanced a slightly different submission on the first issue. He argued that regard may now be had to the terms of section 1(2) of the 1977 Act (Chandler was concerned with a conspiracy at common law, where there was no real difference between the substantive and the inchoate offences) in interpreting the language of section 1(1) of the 1911 Act. We say at once that we prefer Mr Summers' approach to this question. The first step is to consider the substantive offence; the second is to address the statutory conspiracy. These are separate steps which should not be elided.
28. On the second issue, Mr Bowers invited us to consider the 1911 Act in its proper historical context, namely one of impending war with Germany, and he argued that an "updating construction" was impermissible. Accordingly, the concept of "an enemy" falls to be interpreted and applied in the same way as in Parrott. Mr Bowers contended that the prosecution's broader interpretation does not reflect the language of the 1911 Act; rather, it is more redolent of the definitions of "foreign power" and "hostile foreign power" to be found in the 2023 Act. These definitions, submits Mr Bowers, cannot be recruited by the prosecution for the purpose of construing the early statute.

Discussion

The First Issue

29. Our starting point must be to identify the true ratio of Chandler before addressing the defendants' broader arguments as to whether it was wrongly decided and/or remains binding on this Court.
30. The facts of Chandler are too well-known to require any detailed exposition. The appellants, demonstrators against the UK's nuclear deterrent, were charged with a conspiracy to commit a breach of section 1(1)(a) of the 1911 Act by entering a RAF base with the purpose of immobilising it for five hours. Lord Devlin identified the issue in the case in these terms:

"It is not disputed that their immediate purpose was to immobilise the airfield or that that purpose, if nothing more is looked at, was prejudicial to the safety and interests of the State. But they say that their true purpose was to ban the use by this country of nuclear weapons, and that such a ban would in the long term be beneficial, and not prejudicial to the State. The chief ground of this appeal is against the ruling of Havers J at the trial, refusing to allow the appellants to adduce evidence and argument in support of this wider purpose." (at page 802)

31. The prosecution had called evidence from Air Commodore Magill who told the jury that any obstruction of the airfield would prejudice its operational effectiveness. Havers J did not permit cross-examination of this witness on the wider questions raised by the appellants.
32. We do not accept the notion that the House of Lords struggled with the analysis of the section. Each of their Lordships gave reasoned judgments which differed slightly in their formulation but did not fluctuate in terms of their essential reasoning.
33. Lord Reid stated that it was clear that the appellants "intended or desired" the immobilisation of the base, and that it was not possible to construe purpose in any sense that did not include that state of mind (page 790). The disposition and armament of the armed forces could not be questioned in a court of law. Accordingly:

"Plainly, it is not open to an accused who has interfered with or damaged such a place [sc. a prohibited place under section 3 of the 1911 Act] to a material extent to dispute the declaration of the Secretary of State and it would be absurd if he were entitled to say or lead evidence to show that, although he had deliberately done something which would be useful to an enemy, yet his purpose was not prejudicial to the safety or interests of the State." (page 792)

34. Viscount Radcliffe drew a distinction between direct and indirect purposes. In his opinion, Havers J was right to direct the jury that if they were satisfied that the conspirators' direct purpose (the judge called this, "immediate purpose") was to obstruct the operation of the airfield, they had to concentrate on considering whether that purpose itself was prejudicial to the safety and interests of the State, and ignore whether the proposed long-term purpose was beneficial (page 794). In Viscount Radcliffe's view, virtually no evidence is admissible on the issue of prejudice (page 796). To hold otherwise would require the court to examine issues which it was not competent to determine. In short:

"The disposition and equipment of the forces and the facilities afforded to allied forces for defence purposes constitute a given fact and it cannot be a matter of proof or finding that the decisions of policy on which they rest are or are not in the country's best interests." (page 798)

35. Lord Hodson drew a distinction between the appellants' immediate and long-term purposes (page 799), as did Lord Pearce (page 812). They both held Air Commodore Magill's evidence could not be questioned.
36. Lord Devlin drew a distinction between the appellants' purpose on the one hand and the issue of whether it was prejudicial to the safety and interests of the State on the other (pages 804-5). The former was subjective and included the desire to immobilise the airfield; the latter was objective and fell to be determined without regard to their opinions and beliefs. Specifically:

"… all the results which a man appreciates will probably flow from his act are classifiable as "purposes" within the meaning of section 1: and since the statute refers to "any purpose", the prosecution is entitled to rely on any of them. The next question then is whether the selected purpose is "prejudicial" or not, and that question is, in my opinion, to be answered objectively." (page 805)

37. In Lord Devlin's opinion, the Crown's evidence on the objective question raised no more than a rebuttable presumption of prejudice to the safety or interests of the UK, but that presumption had not been rebutted in the circumstances of the present case (page 811). This was because, although the question was for the jury to decide, it was difficult to see how the appellants could sensibly be acquitted (page 803).
38. It may be seen that all of their Lordships drew a distinction between purposes which were "direct", "immediate" or "short-term" on the one hand and those which were "indirect" or "long-term" on the other. It could not be disputed that the immobilisation of the base was within the direct, subjective purpose of the conspirators. As both Lord Reid and Lord Devlin explained, section 1(1) refers to "any purpose" and not "the purpose". Whether that direct purpose was prejudicial to the safety or interests of the UK raised a separate question which fell to be determined objectively (Lord Devlin), and/or as a given fact (Viscount Radcliffe), and/or was close to being non-justiciable (all of their Lordships save for Lord Devlin). Although, in principle at least, the depth of Lord Devlin's inquiry would be greater, he made it clear that on an examination of the conspirators' immediate purpose alone it could scarcely be disputed that there would be prejudice etc to the UK.
39. In our judgment, Chandler clearly establishes that, in proving that the defendant acted "for any purpose prejudicial to the safety or interests of the State" the prosecution must proceed in two steps. First, it must identify a "purpose" for which the defendant acted. That question involves inquiring into the defendant's state of mind: why he acted as he did. At this stage, the prosecution only has to identify a purpose; and it is entitled to identify an immediate one, such as temporarily preventing the operation of an airbase, even if the defendant says that some other ultimate purpose was also being pursued. Second, the prosecution must prove that the purpose it has identified was "prejudicial to the safety or interests of the State". That is an objective question. What matters is whether the purpose was, in fact, prejudicial to the interests of the State, not whether the defendant had the subjective intention of prejudicing the safety or interests of the state.
40. We understand from Ms Alison Morgan KC that the Crown in the present case will be advancing its case to the jury on the basis of Lord Devlin's wider formulation. That gives these appellants some leeway to challenge the prosecution's evidence, but it does not of course mean that the issue of prejudice is transformed into a subjective one.
41. Chandler was a case on section 1(1)(a) of the 1911 Act whereas the present case is concerned with section 1(1)(c). We cannot think that this makes any difference to the meaning and application of "purpose prejudicial", not least because that formulation appears in the opening words of the sub-section rather than in an individual paragraph. The later sub-paragraph in section 1(1) adds a further component which we will need to examine in due course.
42. Nor do we think that a consideration of section 1(2) of the 1911 Act disturbs the foregoing analysis in any way. Chandler did not address that sub-section because the Crown was not relying on this provision. In our judgment, section 1(2) is an evidential provision which permits the Crown to prove a violation of section 1(1) in circumstances where, unlike Chandler, it could not prove any particular act tending to show prejudice. An obvious example would be an individual found on a military base who was not obstructing any activity on it. The sub-section enables the Crown to seek to prove its case by adducing broader evidence of character, conduct and circumstances from which inferences might be drawn as to a defendant's purpose. This means, in context, one of the defendant's purposes, even if it may not be his ultimate purpose. If proved, the next and separate question is whether, viewed in objective terms, that purpose is prejudicial to the safety or interests of the State.
43. For all these reasons we conclude that the ratio of Chandler forecloses the defendants' contention in this Court that the "purpose prejudicial" formulation requires the prosecution to prove that the defendant acted in order to prejudice (or with a view to prejudicing) the safety or interests of the State. We are bound by Chandler and there must end the defendants' arguments on the first limb of the first issue.
44. We should address, for completeness, the defendants' bold contention that Chandler was incorrectly decided. Approaching this exercise of statutory interpretation for ourselves, we apply the principles laid down in a number of recent Supreme Court cases, in particular paragraphs 29 and 31 of O (A child) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255.
45. We do not think that Chandler was either wrongly decided or, in modern conditions, should not be followed. The analysis of the House of Lords of the structure and wording of this sub-section was, we consider, compelling. If Parliament had intended that the prosecution must prove that a defendant had acted "for the purpose of prejudicing the safety or interests of the State" or "in order to prejudice the safety and interests of the State", it could easily have said so. Furthermore, if the defendants were right there would have been nothing to prevent a well-meaning but misguided individual seeking to persuade a jury in, say, the spring of 1914 that providing military secrets to the German empire was in fact in the long-term interests of the UK. When confronted with this example, Mr Summers submitted that such a well-meaning individual would not have been guilty of an offence under section 1 of the 1911 Act. Putting aside whether a jury in that year would ever have believed his evidence, we consider that Mr Summers' suggested approach is as unworkable as it is unreasonable.
46. As for the defendants' other arguments, we do not find them persuasive. Reference has been made to Pepper v Hart, but we do not think that the 1911 Act is ambiguous or obscure in its meaning or leads to absurdity. The 1911 Act was not a consolidation Act and the wording of the Official Secrets Act 1889, to which the defendants refer, is rather different. Further, those parts of the Parliamentary debates to which we were referred, and which we have considered de bene esse, focussed on the new evidential provisions (located within section 1(2)) rather than on the language of section 1(1). On a separate topic, applying conventional principles of statutory interpretation, the 1911 Act cannot be construed by reference to the 2023 Act. Further, the general presumption in favour of mens rea cannot compel a different interpretation of the clear language of section 1(1) of the 1911 Act. Nor do we think that the academic criticism which has been placed before us on a somewhat selective basis grapples with the obvious problems that Lord Reid in particular has identified. In the 1988 edition of Smith and Hogan (6^th edn., at pages 840-1), the authors stated that Lord Reid's approach represented the only reasonable interpretation.
47. Finally, we have noted the views of the Law Commission. Although Chandler was described as an "unusual" decision, we do not interpret the authors of the 2020 Report as suggesting that it was wrongly decided. Rather, different statutory wording was required to achieve a just result.
48. The next question is whether section 1(2) of the 1977 Act materially alters the position.
49. The defendants criticise the judge for dealing with this sub-section in no more than one paragraph of his ruling, but the point is a short one. The key wording is "any particular fact or circumstance necessary for the commission of the offence". As Lord Nicholls explained in Saik, at para 9, "fact or circumstance" is part of the actus reus of the underlying substantive offence. The distinction between actus reus and mens rea is sometimes difficult to draw in the context of a conspiracy, but both Saik and Ali (Arie) are authority for the proposition that where the underlying substantive offence may be committed if the mens rea is less than knowledge or intention, the statutory conspiracy requires proof of knowledge or intention, as the case may be. The concept of "knowledge" is more readily applicable to a case where the Crown relies on a fact, circumstance or state of affairs which already exists; "intention" more naturally applies to a future fact.
50. We note that paras 20 and 21 of the version of Ali (Arie) in the Weekly Law Reports refer to "actus reus" in four places. Those are transcription errors, and we understand the errors will now be corrected. The version of the judgment handed down by this Court refers to "mens rea", and only in that way can these paragraphs be understood.
51. The actus reus of the substantive offence under section 1(1)(a) of the 1911 Act is straightforward: it is the act of entering etc. a prohibited place. Taking the facts of Chandler, the mens rea is doing so for a purpose which, evaluated objectively, is prejudicial to the safety or interests of the State. The actus reus of the common law conspiracy in Chandler was the agreement to enter the prohibited place and the mens rea was the purpose of obstructing the operation of the airbase.
52. In the case of a substantive offence under section 1(1)(c), the actus reus and mens rea are more difficult to disentangle. In the starkest example, the actus reus includes the act of communicating information to another person, but there is also another element which must be satisfied. Where it is alleged that the information "might be" directly or indirectly useful to an enemy, that can be regarded as a further actus reus element. Where, as here, it is alleged that the information was "intended to be directly or indirectly useful to an enemy", that is a further mens rea element, beyond the requirement to show a purpose that, objectively evaluated, is prejudicial to the safety or interests of the State.
53. The Crown concedes that the effect of Saik and Ali (Arie) is that the conspirator whose case is under consideration must intend that the information in question is or will be useful to an enemy. In the same context, Ms Morgan submitted that the entirety of the mens rea for the section 1(1)(c) offence is to be found in sub-paragraph (c): the intention to communicate information directly or indirectly useful to an enemy. We do not accept her analysis. Part of the mens rea for this offence is to be found in the opening words of section 1(1).
54. In our judgment, section 1(2) of the 1977 Act does not operate in the manner urged on us by Mr Summers. That provision applies to offences where liability may be incurred without knowledge of any fact or circumstance necessary for commission of the offence. It is clear that the classification of a purpose as "prejudicial to the safety or interests of the State" is not itself a "fact or circumstance" for the purposes of section 1(2), because it is part of the mental element of the offence. The issue for us to resolve is whether the effect of section 1(2) is to require the prosecution to prove that the defendant whose case is under consideration either knew that what she or he was doing was for a purpose prejudicial to the safety or interests of the State or intended that it be so.
55. We consider that there must be a consistent approach across sub-paragraphs (a)-(c) of section 1(1) of the 1911 Act. A conspirator's purpose, or in Lord Reid's terms "intention or desire", must be specified or identified by the Crown (as it was in Chandler to encompass a purpose to obstruct); but once the purpose has been identified, the question whether it is "prejudicial" raises a purely objective question. We can see no reason why questions which do not have to be proved in a prosecution for the substantive offence (such as whether the defendant acted in order to prejudice the safety or interests of the State) should become relevant to a prosecution for conspiracy. In short, the reasons underlying the approach of the House of Lords to the wording of the substantive offence continue to apply to a statutory conspiracy.
56. As we have already said, we agree with Mr Summers that Saik is authority for the proposition that conspiracy is a full mens rea offence for which nothing less than knowledge of (or intent as to) all constituent facts or circumstances will suffice. On the basis of Chandler, the prosecution has to prove that at least one of a defendant's purposes (or "intentions or desires") was a "purpose prejudicial". Accordingly, on the particular wording of this provision, there is no lesser mens rea to "elevate", to use Mr Summers' term. Section 1(2) of the 1977 Act does not apply to the question whether the purpose was "prejudicial". The descriptor "prejudicial" is part of the mechanism for determining which purposes suffice to constitute the mens rea of the offence, not a "fact or circumstance" within the meaning of section 1(2).
57. Both the judge and Ms Morgan draw a distinction between acts and consequences; "purpose prejudicial" falling into the latter category. We are not convinced that such a distinction is helpful, because in our opinion the intended consequences of the act serve to define its purpose. Moreover, we take Mr Summers' point that this distinction is difficult to reconcile with the opinion of Lord Hope of Craighead in Saik, at paragraph 78. We would prefer to base our conclusion on the particular wording of this particular statutory scheme.
58. The second issue is the meaning of the term "an enemy". We do not think that this term raises a question of any particular complexity.
59. The term "enemy" is not defined in the 1911 Act. Mr Bowers' historical perspective is no doubt correct, and it is also clearly right to say that the 1911 Act was introduced in haste, as a reaction to darkening clouds on the international scene. In Parrott, to the extent that the meaning of "an enemy" had been put in issue, it was only in the context of the UK not yet being at war with Germany; and Phillimore J stated:

"When the statute uses the word "enemy" it does not mean necessarily some one with whom this country is at war, but a potential enemy with whom we might some day be at war."

60. Mr Bowers draws from this dictum a statutory test which is based on the foreseeability of armed conflict. In doing so we consider that he arguably goes further than Phillimore J did and introduces an additional element of uncertainty. Although in 1913 it was no doubt correct to say that Germany was a country with whom the UK might some day be at war (as opposed to France for example, which was an ally) the foreseeability of armed conflict would have been more debatable.
61. In our judgment, the 1911 Act must be construed without reference to the 2023 Act and in a common sense way. This is not a case of applying any "updated construction": enemy means the same thing now as it did in the years before the First World War. We agree with the judge that Russia would be "an enemy" if the jury concluded on the evidence that it was a country with whom the UK might some day be at war. However, neither Phillimore J nor the judge was laying down a comprehensive test. There is no reason in our view why the term "an enemy" should not include a country which represents a current threat to the national security of the UK. That formulation may well involve issues of fact and degree which the jury would be well-placed to assess, on evidence. As the judge correctly observed, friendly powers would fall outside this definition.

Disposal

62. This appeal is dismissed.

Note 1   The 1911 Act was repealed on 20 December 2023 by the National Security Act 2023 (the 2023 Act): see section 100(1), Sch. 18 para. 1 (with section 97) of the 2023 Act; and S.I. 2023/1272 reg. 2(f) (with reg. 3).      [Back]

Note 2   In his ruling, the judge said the particulars would need to be amended to exclude a reference to “calculated to or might be”, and this has now been done.    [Back]