ON APPEAL FROM THE CROWN COURT AT KINGSTON UPON THAMES
HHJ Lodder KC
T2024/0004
AND ON APPEAL FROM THE CENTRAL CRIMINAL COURT
RECORDER OF LONDON
T2023/0596
Strand, London, WC2A 2LL |
||
B e f o r e :
(Baroness Carr of Walton-on-the-Hill)
LORD JUSTICE EDIS
and
MR JUSTICE MURRAY
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ABJ | Applicant | |
- and - | ||
REX | ||
(First Application) | Respondent | |
BDN | Applicant | |
- and - | ||
REX | ||
(Second Application) | Respondent |
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Louis Mably KC and Michael Bisgrove (instructed by The Crown Prosecution Service) for the Respondent.
(First Application)
- and -
Henry Blaxland KC and Jacob Bindman (instructed by Vajahat Sharif) for BDN
Louis Mably KC and Diana Wilson (instructed by The Crown Prosecution Service) for the Respondent
(Second Application)
Hearing date: 27 November 2024
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Crown Copyright ©
This judgment was handed down remotely at 10.00am on Tuesday 24 December 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Baroness Carr of Walton-on-the-Hill, CJ:
Introduction
i) The offence does not require proof that the defendant was aware of the fact that the organisation in question was proscribed;
ii) Proof of the ingredients of the offence is of itself sufficient to ensure that a conviction is a proportionate interference with a defendant's Article 10 rights. No proportionality direction to the jury is required.
The TA and s. 12(1A)
Northern Ireland (Emergency Provisions) Act 1996. Its purpose is to provide the measures considered by Parliament to be necessary to prevent political or paramilitary violence and thereby protect the citizens of the United Kingdom, and to enable a democratic society to operate without fear. It also contains measures designed to prevent the United Kingdom from being used for the purpose of terrorism outside the jurisdiction, terrorism being particularly difficult to counter (see Attorney General's Reference (No 4 of 2002) [2003] EWCA Crim 762; [2003] 3 WLR 1153 at [14]). The TA was amended by the Terrorism Act 2006, which contains further provisions with the same purpose.
for it (s. 12) and the wearing of uniforms etc (s. 13). They fall short of substantive acts, but inhibit activities associated with terrorist organisations, including the invitation of support for them from others. Offences under ss. 11 and 12 are triable either way offences and carry a maximum penalty of 14 years' imprisonment. The offence under s. 13 is a summary only offence with a maximum penalty of six months' imprisonment.
"A person commits an offence if
a) he invites support for a proscribed organisation, and
b) the support is not, or is not restricted to, the provision of money or other property... "
"A person commits an offence if the person
a) expresses an opinion or belief that is supportive of a proscribed organisation, and
b) in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation."
"A person in a public place commits an offence if he
a) wears an item of clothing, or
b) wears, carries or displays an article,
in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation."
Previous authority
47. The criminalisation of such conduct, with the requisite intent, seems to us to fall squarely within the legislative intent and purpose of the section, and of the 2000 Act as a whole. The observations in R v K [2008] QB 827, 706 para 13, and in R v G [2010] 1 AC 43, paras 42—43 and 50, made in relation to the correct ambit of section 58 of the 2000 Act do not seem to us to take the arguments in this appeal any further.48. It is of course important, as we have said, that someone can only be convicted of an offence under section 12(1)(a) if they knowingly invite support for an organisation that is proscribed. The Crown must therefore make the jury sure (i) that the organisation was a proscribed organisation within the meaning of the 2000 Act; (ii) that the defendant used words which in fact invited support for that proscribed organisation; and (iii) that the defendant knew at the time he did so that he was inviting support for that organisation.
49. As the judge was also careful to emphasise, there must be proof of an invitation of support for the proscribed organisation. This is to be distinguished from the (mere) expression of personal beliefs, or an invitation to someone else to share an opinion or belief, conduct that does not fall within the ambit of section 12(1)(a) offence." (emphasis in original)
"...There are at least two problems with that submission. First, it appears to run counter to the principle that ignorance of the law is no excuse...Secondly, it would render the provision a virtual dead letter because it would be very difficult for the prosecution to prove a defendant's knowledge of such matters."
Ingredients of the s. 12(1A) offence
Context of proscription
"The Secretary of State makes the following Order in exercise of the power conferred by section 3(3)(c) of the Terrorism Act 2000(1).The Secretary of State believes that Harakat al Muqawama al- Islamiyya (Hamas) is concerned in terrorism."
"Harakat al-Muqawamah al-Islamiyyah (Hamas) - Proscription extended November 2021Hamas is a militant Islamist movement that was established in 1987, following the first Palestinian intifada. Its ideology is related to that of the Muslim Brotherhood combined with Palestinian nationalism. Its main aims are to liberate Palestine from Israeli occupation, the establishment of an Islamic state under Sharia law and the destruction of Israel (although Hamas no longer demands the destruction of Israel in its Covenant). The group operates in Israel and the Occupied Palestinian Territories. Hamas formally established Hamas IDQ[2] in 1992. Hamas IDQ was proscribed by the UK in March 2001. At the time it was HM government's assessment that there was a sufficient distinction between the so called political and military wings of Hamas, such that they should be treated as different organisations, and that only the military wing was concerned in terrorism. The government now assess that the approach of distinguishing between the various parts of Hamas is artificial. Hamas is a complex but single terrorist organisation.
Hamas commits and participates in terrorism. Hamas has used indiscriminate rocket or mortar attacks, and raids against Israeli targets. During the May 2021 conflict, over 4,000 rockets were fired indiscriminately into Israel. Civilians, including 2 Israeli children, were killed as a result. Palestinian militant groups, including Hamas, frequently use incendiary balloons to launch attacks from Gaza into southern Israel. There was a spate of incendiary balloon attacks from Gaza during June and July 2021, causing fires in communities in southern Israel that resulted in serious damage to property.
Hamas also prepares for acts of terrorism. One incident of preparatory activity is that Hamas recently launched summer camps in Gaza which focus on training groups, including minors, to fight. This is evidence of Hamas being responsible for running terrorist training camps in the region. In a press statement, Hamas described the aim of these camps as to "ignite the embers of Jihad in the liberation generation, cultivate Islamic values and prepare the expected victory army to liberate Palestine"."
i. The use or threat of action which: involves serious violence against a person; involves serious damage to property; endangers a person's life (other than that of the person committing the act); creates a serious risk to the health or safety of the public or section of the public or is designed seriously to interfere with or seriously to disrupt an electronic system;
ii. The use or threat of such action must be designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and must be undertaken for the purpose of advancing a political, religious, racial or ideological cause.
The non-controversial elements
Knowledge of proscription
i) The offence is "truly criminal" and the presumption is therefore particularly strong;
ii) The presence of an express mental element of recklessness in relation to the encouragement of support does not displace the presumption;
iii) The adoption of a requirement to prove awareness of the fact of proscription does not lead to any internal inconsistency in the statute, or lead to absurd results;
iv) Nor does it defeat the object of the statute, which is to criminalise those who are knowingly reckless in encouraging others to support proscribed groups.
"Knowing that an organisation is a prohibited organisation, he must not invite support to it from others."
Proportionality and Article 10
i) Whether Article 10 is engaged. It is common ground that Article 10 is engaged;
ii) Whether the ingredients of the offence themselves strike the proportionality balance so that, if the ingredients are made out, there is no breach of ECHR rights. In such a case, the court does not have to carry out a proportionality test on the facts of the individual case (the second category);
iii) If not, whether there is a means by which the proportionality of a conviction can be ensured (for example, through the interpretative duty in s. 3 of the HRA) (the third category).
The appellants' submissions in summary
i) Neither Choudary nor Pwr, on proper analysis, provide support for a conclusion that the ingredients of the offence themselves strike the proportionality balance;
ii) Section 3 of the HRA requires primary (and subordinate) legislation to be read and given effect in a manner compatible with ECHR rights, so far as possible. Examples of a heightened meaning being given include Connolly v DPP [2007] EWHC 37 (at [18]);
iii) These cases fall within the third category identified in Re Abortion Services. First, it is for the prosecution to establish to the criminal standard that the interference with Article 10 is justified. In the Crown Court, this is a matter to be assessed by a jury (with reliance on DPP v Ziegler and others [2021] UKSC 23; [2022] AC 408 at [60]). Secondly, and in addition, a heightened meaning to the elements of the offence must be given (with reliance on R v Casserly [2024] EWCA Crim 25; [2024] 1 Cr App R 18 (Casserly) at [49] and [52]). The jury would need to be directed to consider the importance of free speech when considering the elements of the offence, in particular the requirement of recklessness.
Analysis
"The requirements of rationality and proportionality, as applied to decisions engaging the human rights of applicants, inevitably overlap . . . the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them."
Conclusion
Note 1 1 Proscribed terrorist groups or organisations accessed 13 December 2024.
[Back] Note 2 Hamas-Izz al-Din al-Qassem Brigades, a part of Hamas. [Back]