Sending a document, video or audio recording to somebody else can amount to a serious terrorism offence if the material encourages terrorism or is designed to assist it. The offence is broad enough to cover a private message to one person as well as publication to a large online audience. It can also be committed without proof that the sender positively wanted anyone to commit an act of terrorism: recklessness is enough.
Section 2 of the Terrorism Act 2006 contains a statutory defence for a person who did not share or endorse the views in the publication. The Court of Appeal has now explained who may rely on that defence, what must be proved and why saying “those are not my views” will not, by itself, be sufficient. The decision in R v Hossen [2026] EWCA Crim 1065 confirms that the defence is available to anyone, but it sets a demanding objective test.
What is the offence of disseminating a terrorist publication?
Under section 2 of the Terrorism Act 2006, a person commits the offence by engaging in specified conduct concerning a terrorist publication while having the required intention or recklessness. The conduct includes distributing or circulating a publication; giving, selling or lending it; offering it for sale or loan; providing a service that enables somebody to access it; transmitting its contents electronically; and possessing it with a view to carrying out one of those acts.
A “publication” can be anything that is intended to be read, watched, or listened to by somebody else. Publication in this sense does not mean published publicly in the way a newspaper or book might be published. In Hossen, the charges concerned documents sent privately to four people.
The prosecution must also prove the necessary state of mind. It can do so by establishing that the defendant intended an effect of the conduct to be the direct or indirect encouragement of terrorism, or intended to provide assistance in the commission or preparation of terrorist acts. Alternatively, it may prove that the defendant was reckless as to whether the conduct would have one of those effects. Recklessness requires proof that the defendant foresaw the relevant risk and went on to take it when doing so was unreasonable in the circumstances known to them.
What counts as a terrorist publication?
A publication can qualify in one of two ways. The first is where its contents are likely to be understood by a reasonable person as directly or indirectly encouraging acts of terrorism. Indirect encouragement can include glorifying terrorist acts in such a way that suggests the crimes depicted should be copied by others.
The second is where the material is likely to be useful in committing or preparing acts of terrorism and is likely to be understood as having been included wholly or mainly for that purpose. This can encompass practical instructions rather than ideological propaganda.
The question is assessed at the time the material is published by the defendant. The court considers the publication as a whole and the circumstances in which it was sent or made available. The prosecution does not have to prove that the recipient was actually encouraged, or that he committed an offence as a result of receiving the material.
How does the section 2(9) defence work?
The statutory defence has two separate requirements. First, the defendant must prove that the material which made the publication a terrorist publication neither expressed their views nor had their endorsement. Secondly, they must prove that it was clear, in all the circumstances of the dissemination, that the material did not express their views and did not have their endorsement.
The distinction is important. The first requirement asks what the defendant truly believed and endorsed. The second looks outward at the objective circumstances in which the material was sent. A person may privately reject a publication while sharing it in a way that gives the recipient no clear reason to understand that. In that situation the first limb may be satisfied but the second will not.
This is not a general “reasonable excuse” or public-interest defence. Nor does it protect a person merely because the material was sent for discussion. The statutory conditions must be proved. The purpose and context of the discussion may provide evidence that those conditions are met, but describing an exchange as a debate does not answer the objective question by itself.
The defence applies to recklessness, not intention
The defence is limited in two further ways. It applies where the publication is a terrorist publication because it contains material encouraging terrorism, rather than where it is classified solely because it contains information useful in committing or preparing terrorist acts. It is also unavailable if the prosecution proves the relevant intention. The Court of Appeal in Hossen described it as a defence to the reckless form of the offence, not to intentional dissemination.
This means the order of the questions at trial matters. The jury should first decide whether the prosecution has proved intention. If it has not, the jury may consider whether recklessness is proved. If the prosecution establishes recklessness and the defence is properly raised, the jury then decides whether the defendant has proved both elements of section 2(9). Running the statutory defence does not require the defendant to concede recklessness; it provides an additional answer if the prosecution succeeds on that route.
Is the defence restricted to journalists and academics?
No. Before Hossen, the trial judge had treated the defence as confined to a particular class of people carrying out legitimate professional activities, such as journalists, academics or librarians. The Court of Appeal held that this was wrong. Parliament did not place an occupational limit in the legislation, and the courts cannot insert one.
A journalist reporting on extremism, an academic studying propaganda or a librarian supplying material for legitimate research may find it comparatively straightforward to show why the publication was disseminated and why non-endorsement was objectively clear. Their profession is evidence that may help to satisfy the test; it is not a gateway to the defence. A person acting in a private capacity can also rely on section 2(9) if both limbs are proved.
What did R v Hossen decide?
Zaheed Hossen was convicted of five counts of disseminating terrorist publications. The charges concerned two documents, The Book of Jihad and 44 Ways to Support Jihad. It was accepted that both were terrorist publications and that Hossen had sent them to four people using WhatsApp and Telegram.
The prosecution relied on extremist material recovered from his devices and on messages said to show that he was trying to influence the recipients, including the woman who later became his wife. Hossen denied holding an extremist ideology. He said he had shared the publications for discussion, that they did not represent his views and that he did not endorse them.
The statutory defence was not raised until after the jury had retired and asked for further guidance about recklessness and indirect encouragement. The judge refused to leave it to the jury because he considered that Hossen did not belong to the professional class of people whom the defence was intended to protect. The Court of Appeal held that this reason was legally incorrect: the defence was not limited by occupation or status.
The convictions nevertheless remained safe. Hossen's evidence that he did not agree with or endorse the publications could potentially address the first limb. There was no sufficient evidence from which a jury could find that his non-endorsement was objectively clear in all the circumstances when he sent them. His assertion about his own views did not perform the separate work required by the second limb. The judge was therefore right not to leave the defence to the jury, although for a different reason.
Who must prove the defence?
The prosecution must prove every element of the offence beyond reasonable doubt. It must prove the relevant dissemination, that the publication met the statutory definition, and that the defendant acted intentionally or recklessly.
Once the prosecution has proved the reckless form of the offence, the defendant must then prove the section 2(9) defence. Unlike the prosecution, the defence need only prove the defence to the civil standard, i.e. that it is more likely than not both that the material did not express their views or have their endorsement, and that this was objectively clear.
Because the defence need to prove points to the jury it is important that lawyer identify issues well in advance of the trial, prepare to argue them and present evidence to the jury. In Hossen, the Court of Appeal criticised the fact that the defence had not been identified in the defence statement or addressed before the summing up.
How to prove you didn’t endorse the terrorist sentiments?
The context is crucial. That could be that the content was distributed by an academic in an academic setting. More likely the defence will rely on setting out conversations going on around the publication. For example, let’s imagine an ongoing conversation in a WhatsApp group the thrust of which is that participants are concerns about the rise of extremism and then somebody sends a document like those distributed in Hossen. There the context will show that there is no intention to encourage terrorism and that the send was not being reckless. If the same document is simply distributed to a wide audience, say on Telegram, with no comment or context then it will be much harder to claim a defence.
The court will not isolate a disclaimer from everything else. Words of criticism may carry little weight if the wider conversation praises terrorism, encourages the recipient to adopt the publication's message or presents it without qualification to an impressionable audience. Conversely, contemporaneous evidence of critical discussion will be more persuasive than a denial first made after arrest.
Other ways of defending the allegation
Section 2(9) is not the only defence. A defendant may dispute that they carried out the alleged dissemination, that the material met the statutory definition in the circumstances, or that they intended or foresaw the prohibited effect. Questions of attribution, knowledge and context can be particularly important where several people used a device, material downloaded automatically, a link did not provide the access alleged, or the prosecution relies on a small selection from a much larger body of messages.
Those are challenges to the prosecution's proof rather than uses of the statutory defence. The distinction affects the burden of proof and the directions that the jury must receive. A defence case should identify each disputed element and explain, in the alternative where appropriate, why section 2(9) is made out if the jury concludes that dissemination was reckless.
What sentence can be imposed?
The maximum sentence on conviction in the Crown Court is 15 years' imprisonment. The current Sentencing Council guideline gives an offence range from a high-level community order to 14 years' custody. The category depends on culpability and harm, including whether the offender intended to encourage or assist terrorism, the size and nature of the audience, the contents of the publication and whether anyone acted on it.
Mr Hossen received six years' imprisonment on each count concurrently, together with a one-year extension period, producing a total extended sentence of seven years. The sentencing judge was entitled to find that he had intended to encourage terrorism notwithstanding that the precise basis of the jury's verdict was unknown. The Court of Appeal dismissed his sentence appeal as well as the appeal against conviction.
Facing an allegation of disseminating terrorist material
These cases turn on detail: exactly what was sent, the nature of the publication, the words used around it, what the defendant knew, who received it and what the whole exchange reveals about intention, recklessness and endorsement. The fact that material was sent privately or for an asserted discussion does not prevent a prosecution, but neither does the presence of disturbing material remove the prosecution's obligation to prove the offence.
Chetwode Criminal Defence Solicitors can examine the digital evidence, identify the correct statutory route, obtain expert evidence where necessary and ensure that the defence is raised clearly and at the proper stage. If you are being investigated or prosecuted, contact Chetwode Criminal Defence Solicitors to obtain advice before taking any action or answering police questions.