Does the Offence of Expressing Support for a Proscribed Organisation Require Knowledge of Proscription and a Proportionality Direction to a Jury?

Both applicants were the subject of prosecutions for offences contrary to s.12(1A) of the Terrorism Act 2000. This provides:

‘A person commits an offence if the person –

• expresses an opinion or belief that is supportive of a proscribed organisation, and

• in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation’.

It was alleged that both applicants had expressed a belief or opinion supportive of Hamas, a proscribed organisation under Sch.2 to the 2000 Act. At a preparatory hearing in the case of ABJ, as required by s.29(1B) of the Criminal Procedure and Investigations Act 1996, the judge had ruled that the s.12(1A) offence does not require proof that D was aware of the fact that the organisation was proscribed in order to be found guilty. He also ruled that since the ingredients of the offence are of themselves sufficient to ensure that a conviction is a proportionate interference with D's rights under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), no proportionality direction to the jury is required. In the case of BDN, the judge had also ruled at a preparatory hearing that proof of the ingredients of the s.12(1A) offence is sufficient to ensure that a conviction is proportionate with D's Article 10 rights.

Both applicants sought leave to appeal these rulings under s.35(1) of the 1996 Act. On behalf of ABJ, it was submitted that the judge ought to have concluded that the prosecution was required to prove awareness of the fact of proscription before a conviction for a s.12(1A) offence could follow. It was further submitted that the judge ought to have ruled that the jury should be directed to carry out a freestanding proportionality assessment under Article 10. For BDN, it was submitted that the s.12(1A) offence is incompatible with both Articles 7 and 10 of the EHCR, such that the court should make a declaration of incompatibility pursuant to s.4(2) of the Human Rights Act 1998. Alternatively, it was submitted that the provision ought to be read as being compatible with Convention rights, as required by s.3 of the 1998 Act. As with ABJ, it was also argued on behalf of BDN that the judge ought not to have ruled that proof of the ingredients of the offence was sufficient to ensure that a conviction was a proportionate interference with BDN's Article 10 rights.

HELD: DISMISSING THE APPEALS, that the presumption of mens rea in relation to knowledge of proscription was rebutted because of the purpose and context of the s.12(1A) offence, i.e., to deprive proscribed terrorist organisations of support, and to protect national security and public safety from terrorist activity. It would undermine the utility of s.12(1A) if proof of knowledge of proscription was required, since it was easily denied. Furthermore, the fact that recklessness suffices for the mental element of the offence was inconsistent with the suggested requirement that proof of knowledge of the proscribed status of the organisation needed to be established.

There was no doubt that the objective of s.12(1A) was sufficiently important to justify the limitation of a fundamental right and that the measure was rationally connected to that objective. To express an opinion or belief that is shared by the proscribed organisation is not the same thing as to express an opinion or belief that is supportive of the organisation. In deciding whether proportionality is inherent in the ingredients of the s.12(1A) offence, the court should pay appropriate respect to Parliament which enacted it. The context of the offence was critical to a proportionality assessment as there was a strong public interest in countering terrorism, including in preventing the spread of terrorist ideology through propaganda or public encouragements. Adopting the same approach as had been adopted previously, the Article 10 challenge failed as the s.12(1A) offence was proportionate to the legitimate objective that it seeks to achieve. The challenge under Article 7 added nothing material to the Article 10 challenge and therefore also failed. The judges below were right to conclude that the ingredients of the s.12(1A) offence themselves satisfy the proportionality requirement.

Commentary

Introduction

Section 12(1A) of the Terrorism Act 2000 did not feature in the Act as originally enacted. Rather, it was inserted nearly two decades later by s.1 of the Counter-Terrorism and Border Security Act 2019. As Lady Carr explained in the present appeals, the ‘trigger for its introduction’ (at [12]) was the decision of the Court of Appeal in R v Choudary and Rahman [2016] EWCA Crim 61, where it was observed in relation to s.12(1) of the 2000 Act that it ‘does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs’ (per Sharp LJ at [35]). Patently, therefore, the purpose of s.12(1A) is to fill the gap that this earlier decision recognised. This was confirmed by the Explanatory Notes to the then Counter-Terrorism and Border Security Bill (at para.31).

Proscription

Section 3 of the 2000 Act is the latest incarnation of the power which the Home Secretary has to proscribe terrorist organisations. It is exercisable where it is believed that an organisation is concerned with terrorism (as defined by s.1(1) of the 2000 Act) in that it: commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism; or is otherwise concerned in terrorism (s.3(5)). At the time of writing, 94 international and Northern Irish terrorist organisations are listed in Sch.2 to the 2000 Act.

The Court of Appeal was very clear in ABJ and BDN that ‘the proscription of an organisation is a matter of law’ (per Lady Carr at [22]). This was on the basis that it is achieved by an amendment to Sch.2 effected by a statutory instrument made under the affirmative resolution procedure, which requires the approval of both Houses. In Choudary, Sharp LJ commented that ‘… the regime of proscription in Part II of the 2000 Act is integral to the measures that Parliament has considered necessary to combat organisations concerned with terrorism’ ([2016] EWCA Crim 61 at [38]). ‘Hamas’, or to give it its full name, Harakat al Muqawama al-Islamiyya, is the terrorist organisation which the applicants in both ABJ and BDN were alleged to have expressed a belief or opinion in support of. Originally, the UK government drew a distinction between the political and military wings of Hamas, with only the latter being deemed to be concerned in terrorism and hence proscribed under the 2000 Act. Now, however, that distinction is regarded as ‘artificial’ and Hamas is seen instead as ‘a complex but single terrorist organisation’ (https://www.gov.uk/government/publications/proscribed-terror-groups-or-organisations–2/proscribed-terrorist-groups-or-organisations-accessible-version, accessed 27 January 2025). Accordingly, the proscription of Hamas currently relates to the whole organisation: see the Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No.3) Order 2021, SI No.1318, arts.1(1) and 2.

Ingredients of the s.12(1A) Offence

The actus reus of the s.12(1A) offence consists of expressing an opinion or belief which is supportive of a proscribed organisation. In Choudary, the Court of Appeal noted that whilst the word ‘support’ is not defined in the 2000 Act, this was unsurprising since it required no elaboration. It was, in its judgment, an ordinary English word with a clear meaning which would be easily understood by a jury. Expressing an opinion or belief can be accomplished in a variety of ways. Whilst it might be conveyed in writing or communicated verbally in person, in Choudary both appellants had given talks which were posted on the internet and in which they had invited support for Islamic State of Iraq and Levant (ISIL).

The mens rea element of the s.12(1A) offence is satisfied where D is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation. Thus, it is not necessary to show that D intended that their expression would have this effect: it is sufficient that they were merely aware that the risk existed, and that they nevertheless took it despite the risk being unjustified in the circumstances known to them: see R v G [2003] UKHL 50. Since the facts of the cases in the present appeals were ‘immaterial’ to the court's decision, it chose to say ‘nothing more about them’ (per Lady Carr, [2024] EWCA Crim 1597 at [7]). However, given that it was later acknowledged that there is ‘no previous appellate authority on s.12(1A)’ (at [16]), it might have been useful to know more about the circumstances which were alleged to constitute the offence. The Explanatory Notes provide some assistance when stating that ‘the new offence … is not subject to a minimum number of people to whom the expression is directed, nor is it limited in terms of applying only to expressions in a public place’ (at para.31). It follows from this, therefore, that a s.12(1A) offence could potentially be committed where D, during the course of a conversation with a visitor to their home, expresses an opinion or belief which is supportive of a proscribed organisation, provided that D is at least reckless as to whether the visitor will thereby be encouraged to support a proscribed organisation.

A key submission made on behalf of ABJ, which was not advanced by counsel for BDN, was that D ought to know that the organisation is proscribed before they can be found guilty of expressing an opinion or belief which is supportive of it. Were this the case, it would add a further mens rea ingredient to the offence thereby making the task of the prosecution more difficult. Whilst Sweet v Parsley [1970] AC 132 is the much-cited authority to the effect that there is a presumption of mens rea for every ingredient of a criminal offence, the presumption may of course be rebutted either expressly or by necessary implication. In the present cases, the Court of Appeal was of the opinion that the presumption had been rebutted by a ‘compellingly clear’ implication based on the purpose and context of s.12(1A). Thus, D may commit a s.12(1A) offence either where they did not know that an organisation was proscribed, or where they were genuinely mistaken as to the organisation's status under the 2000 Act having made enquiries.

Proportionality

Whilst the right to freedom of expression is important in a democratic society and is therefore protected under Article 10 of the ECHR, it is not absolute. Thus, as Sharp LJ explained in Choudary:

Interference with that right may be justified, if it is prescribed by law, has one or more of the legitimate aims specified in article 10(2), is necessary in a democratic society for achieving such an aim or aims (where necessity implies the existence of a pressing social need) and is proportionate to the legitimate aim or aims pursued ([2016] EWCA Crim 61 at [67]).

It was common ground between the parties in the present appeals that s.12(1A) engages Article 10. In the judgment of the Court of Appeal, the interference with freedom of expression which arises is prescribed by law due to the existence of s.12(1A), and the measure is ‘clearly directed to a number of legitimate ends’, i.e., preserving national security, public safety, and the rights and freedoms of others, as well as the prevention of crime and disorder ([2024] EWCA Crim 1597 at [40]). In Re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32, the Supreme Court set out the approach (at [54]—[57]) which ought to be adopted when analysing the effect, if any, of Article 10 on a statutory offence. It was recognised that in some instances the ingredients of the offence themselves strike the proportionality balance with the result that if they are made out, there is no breach of ECHR rights. If this is not the case, then there may be other means by which the proportionality of a conviction can be ensured, e.g., by complying with the interpretative obligation under s.3 of the Human Rights Act 1998. In the present appeals, both trial judges had concluded that s.12(1A) fell into the former category, whereas it was argued on behalf of the appellants that the latter category applied.

The test for determining the proportionality of a restriction on a non-absolute Convention right, which was set down by Lord Sumption in Bank Mellat v HM Treasury (No.2) [2013] UKSC 39, consists of the following four requirements:

(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 (at [20]).

In the judgment of the Court of Appeal in ABJ and BDN, requirements (i) to (iii) were all satisfied in relation to s.12(1A). Thus, for example, the Lady Chief Justice noted with regard to (iii) that “a less intrusive measure was first enacted in s.12(1) of the TA, but Parliament decided that it was insufficient” (at [50]). The proportionality challenge therefore turned on the fourth requirement. Having regard to the terms of s.12(1A), Lady Carr observed:

The offence requires the expression of an opinion or belief that is supportive of Hamas, and not merely that it may be supportive of the achievement of aims which Hamas shares. That is an important distinction which will require the court deciding the case to pay careful attention to what was said and done, the circumstances in which that happened, and the meaning which the speaker intended to convey (at [53]).

The careful analysis which a jury is required to undertake in light of these remarks thus goes some way to ensuring that a conviction can be said to be a proportionate interference with D's Article 10 rights. Whilst there may sometimes be a fine line between remarks which merely support aims which a proscribed organisation shares, and those which support the organisation itself, it is incumbent on the prosecution to establish the latter for D to be rightly convicted of a s.12(1A) offence.

With regard to the mens rea of the offence, the Court of Appeal was of the view that it ‘involves a significantly more culpable state of mind than that required by s.13 of the TA, which is an offence of strict liability’ (at [56]). Given that the Supreme Court previously held in Pwr v Director of Public Prosecutions [2022] UKSC 2 that s.13 constituted a proportionate interference with Article 10 rights, it followed that an offence with a fault element, even where it is recklessness rather than specific intent, could also be said to be proportionate.

Conclusion

In Choudary, the Court of Appeal accepted the submission that ‘the offences in Part II of the 2000 Act are essential to the proscription process because they are the means by which proscription is put into effect’ ([2016] EWCA Crim 61 at [69]). Since that case was decided, s.12(1A) has been added to the list of offences covered by Part II, essentially because, as previously noted, the court in Choudary itself identified the lacunae which it now fills. The decision in the ABJ appeal makes clear that D does not have to know that a terrorist organisation is proscribed before they can be found guilty of a s.12(1A) offence. This is the case even though in practice, ‘the fact of proscription is a widely publicised and easily ascertainable matter’ which, as the Court of Appeal noted, can be accomplished by ‘using a search engine and a few “clicks”’ ([2024] EWCA Crim 1597 at [34]). ABJ and BDN also confirms that s.12(1A) is a further example of a statutory offence whose ingredients of themselves satisfy the requirement that a conviction is a proportionate interference with D's Article 10 rights. The offence may therefore be added to a list which includes breaching a condition imposed on a public assembly contrary to s.14 of the Public Order Act 1986 (James v DPP [2016] 1 WLR 2118), aggravated trespass contrary to s.68 of the Criminal Justice and Public Order Act 1994 (DPP v Cuciurean [2022] QB 888), and doing an act which interferes with the use or operation of any key national infrastructure in England and Wales contrary to s.7 of the Public Order Act 2023 (Sarti v R [2025] EWCA Crim 61).