Ms Perry was convicted of collecting information useful to a terrorist. She appealed arguing the trial judge misconstrued her defence statement. The Supreme Court held the interpretation was a question of fact, found no error, and dismissed the appeal against concurrent findings of fact.
Background
The appellant, Fionnghuale Perry, was convicted of collecting or making a record of information likely to be useful to a terrorist, contrary to section 58(1)(a) of the Terrorism Act 2000. During a police search of her house on 20 February 2018, officers found handwritten notes on cigarette papers, written in code, which the prosecution contended related to a debriefing exercise conducted by dissident republicans concerning a 2015 police seizure of firearms, ammunition and explosives leading to the conviction of Kevin Nolan.
Ms Perry did not dispute that the notes were in her handwriting or that they related to the debriefing exercise alleged. Her case was that original papers were anonymously posted through her letterbox sometime after Nolan’s sentencing in 2017, she copied them in her own hand to protect the source’s confidentiality, and she disposed of the originals. She maintained she did not ‘collect’ the information, that copying was not ‘making of a record’, and that she had a reasonable excuse for possession.
The trial was a non-jury trial before O’Hara J. During the proceedings, the appellant’s defence statement was put in evidence. Paragraph 4(n) of that statement was central to the appeal. It stated:
These original notes were forwarded to the Defendant some considerable time after the events giving rise to Kevin Nolan’s conviction and were forwarded after Kevin Nolan was sentenced. Any currency in the information contained in the notes was considered by the Defendant to have long since dissipated.
The trial judge questioned the appellant about what he perceived as an inconsistency between paragraph 4(n) and her oral evidence. In her oral evidence she claimed the notes were largely meaningless to her and she did not know who Nolan was, yet paragraph 4(n) appeared to indicate she knew the notes related to Nolan’s conviction. The judge concluded that the ‘obvious meaning’ of paragraph 4(n) was that the appellant knew the notes related to Nolan’s conviction and sentence but considered the information no longer of use. He found her oral evidence to be a ‘new and different account’ given to avoid difficult questions, and rejected it as untruthful, convicting accordingly.
The Court of Appeal ([2023] NICA 74) dismissed the appeal, and subsequently ([2024] NICA 11) refused leave to appeal but certified a question of law of general public importance.
The Issue(s)
The certified question was:
In a jury trial, is the construction of a defence statement provided under Part 1 of the Criminal Procedure and Investigations Act 1996 a question of law for the trial judge?
However, it was common ground before the Supreme Court that this question could not be answered in the abstract. Both parties agreed that the interpretation of paragraph 4(n) in this case involved a question of fact, not law. The real issue was therefore whether the trial judge’s factual finding as to the meaning of paragraph 4(n) could be disturbed on appeal.
The Court’s Reasoning
Fact versus law distinction
Lord Hamblen, delivering the unanimous judgment, drew on Professor Sir John Smith’s note in R v Adams [1994] RTR 220 to distinguish between the legal effect of a document (a question of law for the judge) and the meaning of a document as understood or intended by the maker or reader (a question of fact). Since the appeal concerned the meaning the appellant intended or understood paragraph 4(n) to convey, and not its legal effect, it raised a question of fact.
The present appeal is not concerned with the legal effect of para 4(n) of the defence statement. Rather, it concerns the meaning of the document as understood or intended by the appellant.
Standard of appellate review of factual findings
The Court applied the principles from R v Thain [1985] NI 457, which set out four categories governing appellate review of non-jury trial findings. Lord Hamblen held that the interpretation of paragraph 4(n) fell within category 3 — a finding challengeable only if the judge misdirected himself in law or misunderstood or misused the facts.
The appellant’s two submissions were rejected. First, the contention that an appellate court was in as good a position as the trial judge to draw inferences from the document was dismissed because the interpretation of paragraph 4(n) required consideration of the wider evidence, including the appellant’s oral testimony:
The interpretation of para 4(n) was simply one aspect of the evidence relevant to the appellant’s credibility. It was part of the overall assessment of that credibility.
Second, the argument that the adverse interpretation could only be relied upon if the judge was sure it was the only proper interpretation — by analogy with confession evidence directions — was rejected. A defence statement put in evidence by the defence is not analogous to a confession, and while guilt must be proved beyond reasonable doubt, individual evidential matters relied upon do not each need to meet that standard.
The judge’s interpretation was not perverse
Lord Hamblen found the judge’s reading of paragraph 4(n) was far from perverse:
The natural inference to be drawn from the inclusion of the first and second sentences of para 4(n) next to each other in the same numbered paragraph is that they are connected. One does not need the inclusion of the word ‘therefore’ for such a connection to be made.
The judge’s interpretation was also only one part of his wider credibility assessment, which included multiple other cogent reasons for disbelieving the appellant’s account.
Concurrent findings of fact
The Supreme Court emphasised that the factual finding had been upheld by the Court of Appeal, creating concurrent findings of fact. Citing Lord Steyn in Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254, 275, the Court reiterated its strong reluctance to disturb concurrent findings:
While the jurisdiction of the House is not in doubt, it is most reluctant to disturb concurrent findings of fact. There are two reasons for this approach. First, the prime function of the House of Lords is to review questions of law of general public importance… Secondly, in the case of concurrent findings of fact, the House is confronted with the combined views of the first instance judge and the Court of Appeal. A suggestion that the House can be expected to take a different view on concurrent findings of fact generally gives rise to an initial sense of disbelief.
Practical Significance
This judgment confirms that the construction of a defence statement under Part 1 of the Criminal Procedure and Investigations Act 1996 cannot be categorised as a question of law or fact in the abstract — the answer depends on the nature of the statement and the purpose for which it is relied upon. Where the issue concerns the meaning intended or understood by the accused, it is a question of fact. It also reinforces the limited scope for appellate interference with credibility findings of a trial judge sitting without a jury, particularly where the factual assessment forms part of a broader evaluation of the evidence and where concurrent findings of fact exist. The decision underscores that individual items of evidence relied upon by the prosecution need not individually meet the beyond reasonable doubt standard, provided the overall case for guilt does so.
Verdict: The appeal was dismissed. The Supreme Court unanimously upheld Ms Perry’s conviction, finding no error in the trial judge’s interpretation of paragraph 4(n) of the defence statement and no basis for disturbing the concurrent findings of fact made by the trial judge and the Court of Appeal.
Source: R v Perry [2025] UKSC 17
