Choudary & Anor v R.

The appellants, Anjem Choudary and Mohammed Mizanur Rahman, are charged on an indictment containing two counts. Count 1 charges Mr Choudary with an offence contrary to section 12 of the Terrorism Act 2000 (the 2000 Act) of inviting support for a proscribed organisation. The particulars are that between 29 June 2014 and 6 March 2015 he invited support for a proscribed organisation, namely Islamic State of Iraq and Levant (“ISIL”, also known as “Islamic State” or “IS”) in breach of section 12(1)(a) of the 2000 Act. Count 2 charges Mr Rahman with a similar offence in identical terms.

Section 12 of the 2000 Act is headed “Support”. The section is set out in full at paragraph 33 below. Section 12(1)(a) provides that: “(1)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 (within the meaning of section 15).”

On 14 January 2016, Holroyde J made a ruling at a preparatory hearing at the Central Criminal Court. The preparatory hearing was required by section 29(1B) of the Criminal Procedure and Investigations Act 1996 (the CPIA 1996). The first day fixed for trial was 11 January 2016, but the trial was then adjourned for reasons unconnected with this appeal. The appellants now appeal against that ruling with the judge’s permission, pursuant to section 35(1) of the CPIA 1996.

The judge was invited to rule on the legal ingredients of the offence contrary to section 12(1)(a) of the 2000 Act. In summary he held the prosecution were required to prove that:

It was common ground before the judge that holding views supportive of a proscribed organisation was not conduct falling within section 12(1)(a) nor was expressing intellectual or moral support for such an organisation. (Footnote: ¹) It was also common ground that the prosecution were required to prove that a defendant knew that he was inviting support for an organisation that was proscribed, but that there was no requirement to prove specific intent. The issue in dispute was the meaning of the words ‘inviting support’.

As to that, the judge decided in summary that those words should be given their normal and ordinary meaning. The ‘support’ required for the purposes of the actus reus of the offence, was not restricted to support that takes some practical or tangible form. He held further, that there must be proof that the defendant invited support for a proscribed organisation. This he distinguished from the mere expression of personal beliefs or personal approval of the proscribed organisation, and from inviting another to share such an opinion or belief, conduct which did not fall within the actus reus of the offence. Whether the words used did or did not amount to an invitation of support for a proscribed organisation, was a matter of fact for the jury to determine.

The arguments for the appellants in this appeal have been advanced by Mr Summers QC for Mr Choudary, and adopted by Mr Sidhu QC for Mr Rahman. The contention for the appellants is that the actus reus of the offence comprises an invitation by a defendant to one or more persons to join the defendant in providing practical or tangible support to a proscribed organisation. It is said this is the correct meaning of section 12(1)(a) applying ordinary principles of construction. Alternatively, it is said the judge’s (broader) interpretation of ‘inviting support’ is incompatible with articles 7, 9 and 10 of the European Convention of Human Rights (the Convention) and also articles 10 and 11 of the Charter of Fundamental Rights and Freedoms of the European Union (the EU Charter).

For the reasons that follow we would dismiss this appeal.

On 20 June 2014, ISIL (Footnote: ²) was proscribed by the Home Secretary by the Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2014, SI 2014/1624 (the 2014 Order).

When a terrorist organisation is proscribed (i.e. banned), a summary of the relevant background is given in Explanatory Memoranda to the Statutory Instrument. In relation to ISIL, the Explanatory Memorandum to the 2014 Order said this:

“Islamic State of Iraq and the Levant (ISIL) is an armed Sunni Islamist terrorist group active in Iraq and Syria. The group was established just prior to the commencement of coalition operations in Iraq, and pledged allegiance to Al Qa’ida in 2004. The group adheres to a global jihadist ideology, following an extreme interpretation of Islam, which is anti-Western and promotes sectarian violence. ”

In October 2006, the group began using the name ‘Dawlat al-‘Iraq al-Islamiyya’ or Islamic State of Iraq (ISI) in a largely unsuccessful attempt to unify the various Sunni Jihadist factions. In April 2012, the group changed its name to the ‘Islamic State of Iraq and the Levant’ to reflect its involvement in the Syrian civil war. The group is also commonly referred to as the Islamic State of Iraq and Syria (ISI) and Dawlat al Islamiya fi Iraq wa al Sham (DAISh) and the Islamic State of Iraq and Sham.

In April 2014, ISIL claimed responsibility for a series of blasts targeting a Shia election rally in Baghdad. These attacks are reported to have killed at least 31 people. Thousands of Iraqi civilians lost their lives to sectarian violence in 2013, and attacks carried out by ISIL will have accounted for a large proportion of these deaths.

ISIL has reportedly detained dozens of foreign journalists and aid workers. In September 2013, members of the group kidnapped and killed the commander of Ahrar ash-Sham after he intervened to protect members of a Malaysian Islamic charity.

In January 2014, ISIL captured the Al-Anbar cities of Ramadi and Fallujah, and is engaged in ongoing fighting with the Iraqi security forces. The group also claimed responsibility for car bomb attacks that killed four people and wounded dozens in the Southern Beirut suburb of Haret Hreik. Just last week the group used violence to take control of the Iraq city of Mosul prompting many thousands of people to leave their homes.

ISIL has a strong presence in northern and eastern Syria where it has instituted strict Sharia law in the towns under its control. The group is responsible for numerous attacks and a vast amount of deaths. The group is believed to attract a number of foreign fighters, including Westerners, to the region, and has maintained control of various towns on the Syrian/Turkish border. This allows the group to control who crosses, and its presence there has interfered with the free flow of humanitarian aid.

ISIL was previously proscribed as part of Al Qa’ida (AQ). However on 2 February 2014, AQ senior leadership issued a statement officially severing ties with ISIL, which prompted consideration of the case to proscribe ISIL in its own right. Reports suggest that the group was not dependent on AQ core for resources or direction, its disenfranchisement from AQ will not impact the group’s aims, influence, how it operates or its activities.

ISIL is designated as a terrorist group by both Canada and Australia and as an alias of AQ by US, New Zealand and the UN.”

The Crown alleges that the appellants openly supported ISIL before it was proscribed. They are both experienced speakers, perceived by others as leaders. They have a large following on social media, and had made many public statements supporting ISIL on their social media accounts. They had also attended a protest at which banners of support for ISIL were displayed.

The Crown’s case, set out in its revised Case Summary/draft opening note (Footnote: ³) is that after ISIL was proscribed, the appellants invited support for ISIL in four talks (the talks), two given by each appellant, posted on the internet in September and November 2014; and in an Oath of Allegiance posted on the internet on 7 July 2014 in their Islamic names, (Footnote: ⁴) in which they declared their allegiance to a Caliphate, or Islamic State, declared by ISIL on 29 June 2014, and to its leader, or Caliph, Abu Bakr al Baghdadi.

The Oath of Allegiance to Al Baghdadi and the Caliphate was posted in the Arabic and Indonesian languages on a website, Al-mustaqbal.net; and we have been provided with details of the evidence relied on by the Crown said to show the part the appellants played in its production, together with other signatories of it based abroad.

The Oath of Allegiance said amongst other things:

“‘Support by the Muhajiroun to Pledge Allegiance for the Caliphate State.”

…To observe the renowned Levantine speech of Abi Mohammed Al Adnani concerning issues of the Islamic Caliphate State and the message of the Mujahid Sheikh Abi Bakr Al Baghdadi to the Mujahedeen and to the rest of the Muslims during the holy month of Ramadan of the year one thousand, four hundred and thirty five so to observe the apparent development of the Islamic State of Iraq and Levant.

…

1.

The Muhajiroun affirmed that the proclaimed Islamic Caliphate State is a legitimate Islamic Succession fulfilling the conditions of succession and leadership…

4.

Every one of the Muhajiroun has a duty to call for Islam, to command his group to call for Islam wherever they are and to enjoin good and forbid evil, also to take jihad to call for Islam and to support the pledge of allegiance to the Caliphate State’.

Against this background it is said that in the talks the appellants sought to validate the legitimacy of the Caliphate (Footnote: ⁵) and the Caliph, and to emphasise the obligation on others to obey, or provide support to Al Baghdadi. One of those obligations was to travel (or make “Hijra”) to the Islamic state. Whilst it is accepted that the talks do not contain explicit invitations to violence, the talks are said to be invitations of general support for the Islamic State declared by ISIL, and do not limit themselves as to the manner in which support should be given.

The Crown does not accept that this is a marginal case, or that, in saying what they did, the appellants may have stepped over the line between what is permissible, and what is not. Nor is it accepted these are abstract talks about the concept of the Caliphate. It is said that the Caliphate the appellants talked about was that declared by ISIL; and the talks are a justification for the Islamic State declared by Al Baghdadi, in terms which amount to an invitation of support for ISIL. Moreover, the appellants were fully aware of the need for care as to the manner in which public statements of support for ISIL were delivered, given the fact of proscription. The talks were deliberately designed to invite support for ISIL, without going so far as to encourage terrorism or engage in acts of terrorism (discrete offences under the terrorist legislation) and in this respect, they chose their words with particular care.

The appellants deny they are guilty of the offences charged. They do not deny that ISIL in its various names was a proscribed organisation, or that they gave the talks alleged (albeit there may be trial issues about the exact words used or their meaning, and about how the talks came to be posted on the internet). In their defence statements, served on 11 December 2015, they dispute that these talks were invitations to support ISIL and/or that they intended them to be. Mr Choudary for example says: (i) the talks he gave were not inviting support for ISIL, but rather assessing the issues surrounding the implementation of the Islamic State or Caliphate/Khilafah system in the Middle East; and/or (ii) if the talks are found to have invited support for ISIL within the meaning of section 12 of the 2000 Act, he did not do so intentionally.

The long title of the 2000 Act provides that it is:

“An Act to make provision about terrorism, and to make temporary provision in Northern Ireland about the prosecution and punishment of certain offences, the preservation of peace and the maintenance of order.”

Section 1 of the 2000 Act as amended by the Terrorism Act 2006 (the 2006 Act) and the Counter-Terrorism Act 2008 provides as follows:

“(1)

In this Act “terrorism” means the use or threat of action where—

(a)

the action falls within subsection (2),

(b)

the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c)

the use or threat is made for the purpose of advancing a political, religious racial or ideological cause.

(2)

Action falls within this subsection if it—

(a)

involves serious violence against a person,

(b)

involves serious damage to property,

(c)

endangers a person’s life, other than that of the person committing the action,

(d)

creates a serious risk to the health or safety of the public or a section of the public, or

(e)is designed seriously to interfere with or seriously to disrupt an electronic system.

(3)

The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4)

In this section—

(a)

“action” includes action outside the United Kingdom,

(b)

a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c)

a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d)

“the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5)

In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”

The 2000 Act replaced the Prevention of Terrorism (Temporary Provisions) Act 1989 (PTA 1989) and the Northern Ireland (Emergency Provisions) Act 1996 (EPA 1996), together with other Acts relating to Northern Ireland.

Section 2 of the PTA 1989, provided in part as follows:

“Membership, support and meetings

(1)…a person is guilty of an offence if he…

(b)

solicits or invites support for a proscribed organisation other than support with money or other property.”

Section 30 of the EPA 1996 provided in part as follows:

“Proscribed organisations”

(1)…any person who-

(b)

solicits or invites support for a proscribed organisation other than support with money or other property…

is guilty of an offence.”

The offences in section 2 of the PTA 1989 and section 30 of the EPA 1996 were triable either summarily or on indictment. A conviction after a trial on indictment carried a maximum sentence of ten years’ imprisonment.

Part II of the 2000 Act effectively merged the two separate lists of organisations previously proscribed under the PTA 1989 and the EPA 1996 into a single list, (Footnote: ⁶) and established a proscription regime applying across the whole of the United Kingdom. It also extended the ambit of proscription by making it possible for organisations concerned with international or domestic terrorism to be proscribed, as well as those concerned with terrorism connected with the affairs of Northern Ireland. Part II consists of 13 sections, and is divided into two parts: Procedure (sections 3 to 10) and Offences (sections 11 to 13).

Section 3 of the 2000 Act provides that an organisation is proscribed if it is listed in Schedule 2 to the Act, or it operates under the same name as an organisation listed in that Schedule. Under Section 3(3) of the 2000 Act the Secretary of State may, by order, add or remove an organisation from the list in Schedule 2, or amend the Schedule in some other way. These orders are subject to the affirmative procedure and therefore require the approval of both Houses of Parliament.

Under section 3(4) of the 2000 Act, the Secretary of State may only exercise her power to add an organisation to the list of proscribed organisations in Schedule 2 if she believes (Footnote: ⁷) that it is “concerned in terrorism.” For the purposes of Section 3(4) of the 2000 Act, an organisation is concerned in terrorism if it- (a) commits or participates in acts of terrorism, (b) prepares for terrorism, (c) promotes or encourages terrorism, or (d) is otherwise concerned in terrorism: see section 3(5) (Footnote: ⁸) of the 2000 Act. Section 21 of the 2006 Act inserted new subsections (5A), (5B) and (5C) into section 3 of the 2000 Act, so that the promotion or encouragement of terrorism includes the “unlawful glorification” of terrorism.

Sections 4 to 7 of the 2000 Act make provision for organisations and persons to apply to the Secretary of State to be removed from Schedule 2 (deproscription), and for appeals from any refusal to the Proscribed Organisations Appeal Commission, and thereafter to the Court of Appeal.

The offences in Part II of the 2000 Act relate to membership of a proscribed organisation, section 11; support for it, section 12; and the wearing of uniforms et cetera, section 13.

Proscription has other consequences. The definition of “terrorist property” in section 14 of the 2000 Act includes money or other property which is likely to be used for the purposes of terrorism (including any resources of a proscribed organisation): see section 14 (1)(a). Once an organisation is proscribed, by virtue of section 1(5) of the 2000 Act, the prohibitions and restrictions laid down in other parts of the 2000 Act are engaged. These include sections 15 to 18 (which create offences of fundraising, use or possession of money or other property, making funding arrangements or money laundering for the purposes of terrorism); section 19, which makes it an offence to fail to disclose any belief or suspicion that another person has committed any offences under sections 15 to 18 in certain circumstances, and section 56, which makes it an offence to direct at any level the activities of an organisation which is concerned in the commission of acts of terrorism. (Footnote: ⁹)

Sections 11 and 12 are based on the offences in section 2 of the PTA 1989 and section 30 of the EPA 1996.

The Explanatory Notes to the 2000 Act say this, at para 23:

“Membership and support.

These offences are based on those in section 2 of the PTA and section 30 of the EPA, and have similar effect. The offence in section 12(1) is not confined to support by providing “money or other property”, because that kind of support is dealt with in Part III of the Act. Subsection (4) of section 12 is intended to permit the arranging of genuinely benign meetings.”

Section 11 of the 2000 Act, provides that:

“(1)

A person commits an offence if he belongs or professes to belong to a proscribed organisation.

(2)It is a defence for a person charged with an offence under subsection (1) to prove—

(a)

that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and

(b)

that he has not taken part in the activities of the organisation at any time while it was proscribed.

(3)

A person guilty of an offence under this section shall be liable—

(a)

on conviction on indictment, to imprisonment for a term not exceeding ten years, to a fine or to both, or

(b)

on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

Section 12 of the 2000 Act provides that:

(1)

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 (within the meaning of section 15).

(2)

A person commits an offence if he arranges, manages or assists in arranging or managing a meeting which he knows is—

(a)

to support a proscribed organisation,

(b)

to further the activities of a proscribed organisation, or

(c)

to be addressed by a person who belongs or professes to belong to a proscribed organisation.

(3)

A person commits an offence if he addresses a meeting and the purpose of his address is to encourage support for a proscribed organisation or to further its activities.

(4)Where a person is charged with an offence under subsection (2)(c) in respect of a private meeting it is a defence for him to prove that he had no reasonable cause to believe that the address mentioned in subsection (2)(c) would support a proscribed organisation or further its activities.

(5)In subsections (2) to (4)—

(a)

“meeting” means a meeting of three or more persons, whether or not the public are admitted, and

(b)

a meeting is private if the public are not admitted.

(6)

A person guilty of an offence under this section shall be liable—

(a)

on conviction on indictment, to imprisonment for a term not exceeding ten years, to a fine or to both, or

(b)

on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.

As can be seen, section 12 creates three offences: (i) inviting support for a proscribed organisation; (ii) arranging, et cetera, a meeting which is to support a proscribed organisation; and (iii) addressing a meeting of which the purpose is the encouraging of support for a proscribed organisation.

It is however important to note what the section does not prohibit. It is common ground as we have said, that it does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs (though as the judge noted, depending on the circumstances the expression of opinions or beliefs might in principle, constitute an offence under section 11 of professing membership).

Section 13(1) provides that 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. Section 13(3) provides that this is a summary only offence, with a maximum sentence of six months’ imprisonment.

In Attorney General’s Reference (No 4 of 2002) [2003] EWCA Crim. 762, [2003] 3 WLR 1153, as to which, see further, para 64 below, Latham LJ, giving the judgment of the Court, described the purpose of the 2000 Act as self-evident:

“‘It provides the measures which Parliament considers is necessary to prevent political or paramilitary violence and thereby protect the citizens of the United Kingdom, and enable a democratic society to operate without fear. It also contains measures which are designed to prevent the United Kingdom from being used for the purposes of terrorism outside the jurisdiction. It is universally acknowledged that terrorism is particularly difficult to counter. The European Court of Human Rights acknowledged that full account had to be taken of the special nature of terrorist crime and the threat which it posed to a democratic society in Murray v United Kingdom (1994) 19 EHRR 193.”

As is clear from the statutory framework, 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. No one doubts, as the judge said, the competence of Parliament to legislate to proscribe organisations concerned with terrorism, as so defined; nor we would add, its competence to make proscription effective by inhibiting activities associated with such organisations. In short, statutory proscription is of no value or effect if the legislature does not also provide the means to enforce it, or put it into effect.

The offences in sections 11 to 13 fall short of substantive acts, such as participating in terrorism or preparing or training for acts of terrorism, but they inhibit activities associated with terrorist organisations, including the invitation of support for them from others.

The judge in this case identified the mischief at which the section 12(1) offence is aimed as conduct that strengthens, promotes or assists organisations which are concerned with terrorism. As he explained:

“To invite the support of others for a proscribed organisation is to promote that organisation. The fact that a proscribed organisation has an increased number of supporters is in itself a benefit and boost to that organisation, whether or not the support of all is manifested in practical or concrete ways.”

The words ‘invite’ and ‘support’ are not defined in the 2000 Act, and we do not find that surprising. Subject to the point we deal with at para 54 below, those words, as used in section 12(1)(a) of the 2000 Act, require no elaboration. On the face of it, they are ordinary English words with a clear meaning, and would be easily understood by a jury.

Mr Summers describes the use of the word ‘invite’ in a penal statute as curious. We do not consider that it is. The use of that word means the offence in section 12(1)(a) is one where “the words descriptive of the prohibited act… themselves connote the presence of a particular mental element.” per Lord Diplock in Sweet v Parsley [1970] A.C. 132 at p.162E. As the judge said, it is difficult to see how an invitation could be inadvertent.

The appellants submit that the Crown is required to prove an invitation by a defendant to one or more persons to join the defendant in providing support to a proscribed organisation, as part of the actus reus of an offence under section 12(1). This submission is based on the suggestion that ‘invite’, in its normal meaning, connotes or implies that the maker of the invitation is already engaged in something, or intends to do that “something” himself.

We accept such an implication may arise in ordinary conversation, depending on the context (an invitation to a party for example). However it is possible to invite someone to do something which the person issuing the invitation is not doing and does not intend to do (an invitation to counsel to lodge written submissions, to take a different example). If resort needs to be had to dictionaries to make the point, the first definition provided for the word “invite” in the Oxford English Dictionary is: “to make a polite, formal or friendly request to (someone) to go somewhere or do something”.

Whilst common sense might suggest that a defendant charged under section 12(1)(a) may provide support for the proscribed organisation himself, or intend to so, and may want others to join him in such activities, in our judgment, there is nothing in the language of the section to support the proposition that the prosecution must prove this as part of the actus reus of the offence. The criminality in short, lies is inviting support (from third parties) for the proscribed organisation, not in inviting those third parties to join with the defendant in providing it.

The ‘support’ in question may be practical or tangible, but it need not be, and we agree with the judge’s analysis:

“The Oxford English Dictionary’s definition of the noun 'support' includes the provision of assistance, of backing or of services to keep something operational: examples of the sort of practical or tangible assistance which defence counsel submit is the true subject of the section 12(1) offence. But the dictionary definition also includes encouragement, emotional help, mental comfort, and the action of writing or speaking in favour of something or advocacy. In everyday language, support can be given in a variety of ways, and it seems to me that it is for a jury to decide whether the words used by a particular defendant do or do not amount to inviting support. In its ordinary meaning, “support” can encompass both practical or tangible assistance, and what has been referred to in submissions as intellectual support: that is to say, agreement with and approval, approbation or endorsement of, that which is supported.

From the point of view of the proscribed organisation, both types of support are valuable. An organisation which has the support of many will be stronger and more determined than an organisation which has the support of few, even if not every supporter expresses his support in a tangible or practical way. The more persons support an organisation, the more it will have what is referred to as the oxygen of publicity. The organisation as a body, and the individual members or adherents of it, will derive encouragement from the fact that they have the support of others, even if it may not in every instance be active or tangible support. Hence in my judgment, it is a perfectly understandable that Parliament, in legislating to give effect to the proscription of a terrorist organisation, prohibits the invitation of support for that prohibited organisation without placing any restriction upon the meaning of the word 'support', other than to exclude conduct caught in any event by a separate provision of the Act.”

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] EWCA Crim. 185, [2008] QB 827 at para 13, and in R v G [2009] UKHL 13, [2010] 1 AC 43, at 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.

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 prosecution must therefore make the jury sure (i) that the organisation was 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.

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 the section 12(1)(a) offence.

The appellants submit that in its ordinary meaning, section 12(1)(a) is uncertain and insufficiently precise to enable individuals to know whether their conduct is lawful or not. It therefore offends against the principle of legality, and infringes article 7 of the Convention. We do not agree. An offence must be clearly defined in law; and a law must be formulated with sufficient precision to enable a citizen to foresee, if need be, with appropriate advice, the consequences which a given course of conduct may entail: see R v Rimmington [2005]UKHL 63, [2006] 1 AC 459, in particular para 35 where the Strasbourg jurisprudence in relation to article 7 of the Convention is summarised.

The judge said correctly in our view:

“It does not seem to me that a statutory provision prohibiting a man from inviting support for a proscribed organisation is in any way unclear. Nor is it difficult for a man to know the boundaries of his permissible behaviour. Knowing that an organisation is a prohibited organisation, he must not invite support to it from others. I do not think it is as difficult as the defendants’ counsel suggest, to distinguish between holding a view, which may also be held by members of a proscribed organisation, and supporting the proscribed organisation. Once again, one can easily say that one agrees with certain views, but does not support the proscribed organisation.”

We accept of course, that the words should be given a close construction, as is required for any penal statute. But applying that principle does not lead us to take a different view of what are clear, and easily comprehensible words. We do not consider the famous dictum of Lord Reid in Sweet v Parsley [1970] 132, at page 149E, and the universal principle to which he refers, assists the appellants on the facts. If the word ‘support’ is given its ordinary meaning, the actus reus of the offence can encompass support which goes beyond that which can be characterised as practical or tangible, but this does not mean the section is ambiguous or impermissibly vague.

The appellants submit this (broader) construction is contrary to the tenor of the rest of the section, and indeed to the tenor of three proscription offences read as a whole. Their focus so it is said is on practical support of different kinds, and nothing more. A number of different reasons are given for this contention, but we do not find any of them persuasive.

First, it is said, section 12(1)(b) makes reference to practical or tangible support (“money or other property”). Thus, an application of the ejusdem generis principle, means the support referred to in section 12(1)(a) should be similarly construed. Quite apart from the fact that this would involve an inverse application of the ejusdem generis principle (since as commonly understood it applies to general words following the less general, and not the other way around) in our view this submission is misconceived. The words “money or other property” in section 12(1)(b) are not there to establish a genus but operate to exclude from the definition of ‘support’ for the purposes of an offence under section 12(1)(a) conduct which falls to be dealt with under section 15 of the 2000 Act. (Footnote: ¹⁰) We would add that if the Explanatory Notes to Sections 11 and 12, set out in para 31 above, might be read as suggesting otherwise, they are obviously wrong.

Secondly, it is said sections 12(2) and (3) can only be sensibly read as referring to practical or tangible support; and section 12(1)(a) should be construed consistently with those subsections. As we have said, section 12 creates three distinct offences relating to support. We do not consider that giving the word support its ordinary meaning for the purposes of section 12(1)(a) gives rise to any arguable inconsistency. The offences created by sections 12(2) and (3) deal with different forms of support, which can in any event encompass conduct that is somewhat broader than the ‘mere’ practical (as can be seen by the use of the words: “further the activities of the proscribed organisation for the offence” in section 12(2)(b); and the words “or to further its activities” in section 12(3)).

It is argued by reference to section 13 of the 2000 Act, that where the 2000 Act intends to refer to and criminalise support of a proscribed organisation, or ‘cheerleading’ as Mr Summers describes it, it says so and such conduct leads to a significantly lower sentence. Thus it is said, the conduct element of the offence in section 12(1)(a) cannot include mere intellectual or mental approval, but must be aimed at something materially different, and more serious.

We do not think the difference between the two sections either as to penalty or preposition for that matter (support of, rather than support for) are of any significance. Even if the conduct criminalised by section 13 can properly be characterised as ‘cheerleading’ such a description does not apply to the conduct criminalised in section 12. Simply put, sections 12 and 13 address types of conduct of differing seriousness. In our view, the different penalties that apply are readily explicable on that basis.

In a similar vein, Mr Summers points out that an offence of encouraging terrorism contrary to section 1 of the Terrorism Act 2006 (the 2006 Act) carries a maximum sentence of seven years’ imprisonment. Such an offence may be committed he says, by a defendant directly encouraging the commission of a crime as serious as murder. And it would be anomalous if conduct which is more serious than that penalised by section 12(1)(a), could only attract a lesser sentence. However these are different provisions, in different Acts of Parliament, covering different offences. Any anomaly (which in our view would not be necessarily be removed by giving the words in section the appellants’ more restrictive interpretation) is a matter to be resolved by Parliament.

We are told by Mr Summers and of course accept, that there have been no known prosecutions for inviting ‘moral or intellectual’ support for a proscribed organisation under the equivalent provisions of the PTA 1996 and the ETA. He submits that if the section we are considering bears the wide meaning given to it by the judge, it would necessarily have encompassed the activities of members of Sinn Fein, who regularly invited support for the IRA. In our view, this point is of no relevance. The absence of prosecutions may have been for any number of reasons, about which we cannot speculate. What we can say however is that previous prosecutorial practice cannot be any guide to what Parliament intended when it came to enact section 12, or to the meaning of the ordinary English words which the section contains.

Finally, Mr Summers submits that the fact there is no equivalent offence of inviting support for “murderous dictators” or for war criminals gives rise to another anomaly. The point seems to us to be irrelevant. Proscribed organisations are the subject of a statutory regime; murderous dictators are not. These are matters for Parliament, not for us.

There is no doubt that this aspect of the argument has received much more emphasis before us than it did before the judge; and we have been presented with an array of authorities, submissions and schedules on the issue, which continued to arrive for some days after the hearing.

Though the issue is approached in a number of different ways, the essential argument in relation to Convention rights seems to us to be based on two points: legality and proportionality. In relation to the second of those two points, the argument advanced is that Strasbourg jurisprudence discloses a “bright line” rule that criminalisation of speech infringes article 10 of the Convention unless the speech advocates or encourages violence.

The material parts of article 10 provide that:

“(1)

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions, and to receive and impart information and ideas without interference by public authority…

“(2)

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime…”

In Sheldrake v Director of Public Prosecutions, Attorney General’s Reference (No 4 of 2002) [2005] 1 AC 264 the defendant in the Attorney General’s reference was acquitted of two offences contrary to section 11 of the 2000 Act. The Attorney General referred to the Court of Appeal two questions: what were the ingredients of the offence contrary to section 11(1); and did the defence in section 11(2) impose a legal, rather than an evidential burden upon a defendant (and if it did, whether this was compatible with articles 6(2) and 10 of the Convention). In a conjoined appeal, the House of Lords upheld the decision of the Court of Appeal in the Attorney General’s Reference, that the ingredients of that offence were fully set out in section 11(1) and did not include participation in the activities of a proscribed organisation. The House also decided by a majority of three to two, reversing the Court of Appeal, that it was appropriate, pursuant to section 3 of the Human Rights Act 1998, to read down section 11(2) so it imposed an evidential, and not a legal burden on the defendant.

In the course of considering those questions, Lord Bingham of Cornhill, with whom Lord Steyn and Lord Phillips of Worth Matravers MR agreed, said this:

“50.

… There is also, in my opinion, no doubt that subsections (1) and (2) are directed to a legitimate end: deterring people from becoming members and taking part in the activities of proscribed organisations …

54.

In penalising the profession of membership of a proscribed organisation, section 11(1) does, I think, interfere with exercise of the right of freedom of expression guaranteed by article 10 of the Convention. But such interference may be justified if it satisfies various conditions. First, it must be directed to a legitimate end. Such ends include the interests of national security, public safety and the prevention of disorder or crime. Section 11(1) is directed to those ends. Secondly, the interference must be prescribed by law. That requirement is met, despite my present doubt as to the meaning of “profess”. Thirdly, it must be necessary in a democratic society and proportionate. The necessity of attacking terrorist organisations is in my view clear. I would incline to hold subsection (1) to be proportionate, for article 10 purposes, whether subsection (2) imposes a legal or an evidential burden.”

Though these observations were made in relation to section 11, we think they are valuable in relation to the issues raised in this appeal. We certainly accept that a prosecution for an offence contrary to section 12(1) of the 2000 Act engages article 10 of the Convention, to the extent that it limits the right of an individual to express himself in a way that amounts to an invitation of support for a proscribed organisation. We also accept that article 10 is engaged on the facts of this case.

However, the right to freedom of expression is not absolute. 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.

The starting point in relation to an offence under section 12 is the fact of proscription. In other words, section 12, like sections 11 and 13, is concerned with activities associated with an organisation that has already been proscribed in accordance with the process laid down in the legislation, following a determination by the Secretary of State that it is concerned with terrorism, as defined. The terms of section 12 (1)(a) itself are clear: see paras 50 to 52 above, and in our view the requirement that the interference must be prescribed by law is met. Further, section 12(1)(a), like section 11, is a measure that is clearly directed to a number of legitimate ends: preserving national security, public safety, the prevention of disorder and crime and the rights and freedoms of others.

The appellants do not argue that a prosecution for inviting practical or tangible support for a proscribed organisation would infringe the rights protected by the Convention. However the broader support which the section is aimed at, is very valuable to such organisations for the reasons identified by the judge, and needless to say, it cannot be known how such invitations of support will be acted on. As Mr Whittam QC for the Crown submits, 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. They enable the State to counter and attack such organisations, the influence they have on third parties and, ultimately, the threat that they pose to society.

When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified.

We take the same view in relation to article 9 of the Convention. No developed argument was made in relation to the engagement of article 9 on the facts. Though the appellants relied on the rights protected by article 9 of the Convention (to freedom of thought, conscience and religion) the sole point taken was that article 9(2) in contrast to article 10(2), does not permit the rights protected by article 9(1) to be restricted in the interests of national security. However, we do not think this adds anything of substance to this appeal. The permissible restrictions in article 9(2) include the protection of public order, and the protection of the rights and freedoms of others, which are amongst the legitimate ends at which section 12(1) is directed, as we have already said.

Convention issues on proportionality are normally raised by reference to the detailed underlying facts. The argument for the appellants was not addressed to us in this way. The only specific fact relied on in this connection, is the Crown’s acceptance in the terms set out at para 15 above, that the invitations of support relied on by the Crown, do not contain explicit invitations to violence.

The argument for the appellants as we have said is that the relevant Strasbourg jurisprudence discloses a ‘bright line’ drawn between speech that amounts to an incitement to violence and speech that does not. Criminalising the latter, it is argued, amounts to an unjustified infringement of article 10, whereas criminalising the former does not. Most of the cases relied on concern Turkey and the PKK.

The first in time is Zana v Turkey 27 EHRR 667 decided by the Grand Chamber in 1997. The applicant, a former mayor, had told a journalist in an interview for a newspaper that he supported the PKK but that he was not in favour of massacres. He said that anyone can make a mistake and that the PKK killed women and children by mistake. He was convicted of the offence “publicly to praise or defend an act punishable by law as a serious crime”. At paragraph 51 of the judgment the court set out the fundamental principles relating to article 10. Most of the later cases repeat and adopt these principles.

“(i)

Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. (Footnote: ¹¹)

(ii)

The adjective “necessary”, within the meaning of Article 10(2) implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. (Footnote: ¹²)

(iii)

In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. (Footnote: ¹³) In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.” (Footnote: ¹⁴)

Applying those principles to the facts, the court decided that there had not been a violation of article 10. It said that Turkey had legislated as it did to maintain national security and public safety as part of the fight against terrorism. The law invoked against Zana, which involved an interference with free speech, was proportionate to those legitimate aims.

There were eight cases decided by the Grand Chamber in 1999: Arslan v Turkey 31 EHRR 9; Erdogu and Ince v Turkey App. No. 25067/94 & 25068/94, 8 July 1999; Gerger v Turkey App. No. 24919/94, 8 July 1999; Karatas v Turkey App. No. 23168/94, 8 July 1999; Baskaya and Okcuoglu v Turkey 31 EHRR 10; Surek (No 1) v Turkey App. No. 26682/95, 8 July 1999; Surek and Ozdemir v Turkey 7 BHRC 339.

All of the cases were concerned with prosecutions under the Prevention of Terrorism Act as it then applied in Turkey, and in each, the court expressly reiterated the principles set out in paragraph 51 of Zana. The relevant section of the Prevention of Terrorism Act said as follows (the last eight words were removed from the section in 1995):

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention.”

Arslan was an historian who had published what the court called “a literary historical narrative” of events in Turkey involving Kurds. The book did not deal with current events. The court acknowledged that it was open to a state to take measures against those who expressed a political view, though the state was obliged to exercise restraint – taking into account freedom of expression. The judgment then said this:

“…where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression.”

The relevant passage concluded with the observation that the absence of any incitement to violence was “a factor which it is essential to take into consideration”. The court did not say that such absence meant that there was a violation of article 10. It is further to be noted that the legislation under which Arslan was prosecuted, did not refer explicitly to a proscribed organisation. Since the book in question was historical in nature, it is perhaps not surprising that the court found that the interference with free speech was not justified.

Erdogu was the editor of a magazine and Ince was a journalist working for the magazine who had interviewed a sociologist. The sociologist expressed strong views about Turkish government policy towards the Kurds and the role of the PKK. However, the content of the interview was an analysis from a sociological viewpoint, of the PKK and its role. It was in this context that the court said that the interview could not be read as an incitement to violence. The court also was concerned with the proportionality of the proposed sentences imposed when compared to the nature of the activity in question.

Gerger was a journalist who sent a message to be read out at a meeting held to commemorate the execution, 20 years earlier, of three young left-wing opponents of the Turkish government of the time. The judgment repeated much of the content of the judgment in Arslan. The court found there had been a violation of article 10. The essential basis of that finding was that the message was read out only to the people who attended the meeting, and was not more widely published.

Karatas published an anthology of his poems. The court said that, taken literally, the poems might be construed as inciting violence but that, in deciding whether they did so, the medium was poetry which only appeals to a minority of readers. This approach, which we are bound to say we find somewhat illogical, was the basis for the conclusion that the prosecution was disproportionate and contrary to article 10.

Baskaya wrote and Okcuoglu published an academic work setting out the socio-economic evolution of Turkey since the 1920s. It included discussion of the Kurdish issue which it described as complex. The court found that the prosecution of the two defendants was a violation of Article 10 because it failed to have sufficient regard to freedom of academic expression and the public’s right to be informed of a different perspective on the situation in south-east Turkey.

There were two cases involving Surek who published a political journal. In one the court concluded that there had been no violation of article 10 when prosecution followed his publication of letters which indirectly portrayed the PKK’s activity as acts of national liberation. In the other, Surek had published an interview with a PKK leader. Although the conclusion that there had been a violation of article 10 was linked to the absence of any incitement to violence or any liability to incite to violence, the court also said that the state had failed to have sufficient regard to the public’s right to be informed of a different perspective.

Gunduz v Turkey. This was a decision of the Fourth Section in 2003. The offence was incitement of people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions. Gunduz was the leader of an Islamic sect who appeared on a live television programme in which he expressed views about the interplay between Islam and democracy and defended Sharia as a system. His prosecution was for hate speech. The court noted that Gunduz’s comments were in the context of a pluralistic debate and were counterbalanced by the contributions of others. In that context there was no justification for the restriction in the freedom of speech.

Gul v Turkey. The provision under which Gul was prosecuted was in these terms:

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment.”

Gul had participated in demonstrations during which he had shouted slogans which supported various Marxist-Leninist parties and organisations. The court concluded that there had been a violation of article 10. It said:

“41.

The Court observes that, taken literally, some of the slogans shouted (such as “Political power grows out of the barrel of the gun”; “It is the barrel of the gun that will call into account”) had a violent tone. Nevertheless, having regard to the fact that these are well-known, stereotyped leftist slogans and that they were shouted during lawful demonstrations—which limited their potential impact on “national security” and “public order”—they cannot be interpreted as a call for violence or an uprising. The Court stresses, however, that whilst this assessment should not be taken as an approval of the tone of these slogans, it must be recalled that art.10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. (Footnote: ¹⁵) The Court also reiterates that, according to its well-established case law, para.2 of art.10, is applicable not only to “information” or “ideas” which are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. (Footnote: ¹⁶) ”

42 The Court observes that, by shouting these slogans, the applicants did not advocate violence, injury or harm to any person. Furthermore, neither in the domestic court decisions nor in the observations of the Government is there any indication that there was a clear and imminent danger which required an interference such as the lengthy criminal prosecution faced by the applicants……..

44 In view of the above findings, the Court is of the view that the applicants’ conduct cannot be considered to have had an impact on “national security” or “public order” by way of encouraging the use of violence or inciting others to armed resistance or rebellion, which are essential elements to be taken into account. (Footnote: ¹⁷)

45 Having regard to the above considerations, the Court concludes that, in the circumstances of the present case, the interference in question was not, “necessary in a democratic society”. Accordingly, there has been a violation of art.10 of the Convention.

The appellants relied in argument on what was said in the dissenting judgment. We doubt the validity of that reliance, but in any event, the judgment does not have the effect suggested, and has little to connect it with what we know about the facts of this case. The passage relied on says as follows:

“…we do not believe that moral support for terrorism per se deprives an expression of the protection of Article 10. It is possible … that someone agrees with certain terrorists about an alleged injustice which the terrorists claim to be the reason of their fight. Such agreement on matters of injustice is indirect support only and does not amount per se to the support of terrorist methods.”

We are not persuaded that any ‘bright line’ principle can be discerned from the cases to which we have been referred. In none of the cases was the defendant prosecuted for inviting support from third parties for the organisation in question. Further, the references to support for violence were made within a general discussion of the facts, and as part of the careful proportionality analysis undertaken by the court. The high point of the appellants’ case appears to be Gul. But there is little to compare that case with this one. It is true that the offence in that case related to an illegal group. However the prosecution concerned well-known leftist slogans shouted during a lawful and peaceful demonstration, and the nature of the slogans limited their potential impact on ‘national security’ and ‘public order’. We would only add that, contrary to the principle contended for, it has been held permissible in article 10 terms to criminalise speech which does not involve any incitement to violence albeit in rather different circumstances. See for example, Hoare v United Kingdom [1997] EHLR 678 (obscenity) and Wingrove v United Kingdom [1997] 24 EHRR 1 (blasphemy).

Finally, we turn to the EU Charter, which we need mention only briefly. The EU Charter applies to Member States only when they are implementing Union law. An issue was raised (in more detail in written submissions lodged after the hearing, than during the hearing itself) as to the applicability of the EU Charter; and in particular, whether section 12 of the 2000 Act fell ‘within the scope of EU law’. However, there is no distinction in this case between the rights relied on under the EU Charter and those relied on under the Convention. In those circumstances, as Mr Summers accepts, the points made in relation to the EU Charter did not add anything of substance to the appeal save as to remedy, and this is an issue which in the event, does not arise.

We expressed our concern to the parties during the course of the hearing, about the fact that the issues raised before us, were dealt with by the judge at the Preparatory hearing, a hearing which took place nominally at least, a day or so after the first day fixed for the trial. Counsel explained this resulted from the shortened timetable of the case, and the timing of the service of evidence. We make no criticism of Counsel. However, we think it unsatisfactory that issues as fundamental as this might be to a prosecution, are not dealt with at an earlier stage of the proceedings. Preparatory hearings may be necessary to ensure that trials do not take place on a flawed legal basis. To the extent that such issues are dealt with on the first day of the trial, but before the trial proper has begun, time and costs are saved. However, it is also, and equally important to ensure, in accordance with the overriding objective, that costs are not wasted in preparing for a trial that ultimately does not take place. In our judgment, both sides in the criminal process, that is the prosecution and defence, should ensure that this does not occur. For the future, we see no reason why an issue such as the one we have had to consider here, should not be considered in particular by the defence, at a much earlier stage than this one was; and listed and determined before the considerable costs of trial preparation up to the first day of the trial, have been incurred. To the extent that it is necessary to consider any amendment to the Criminal Procedure Rules to ensure this occurs, we would invite the Criminal Rules Committee to do so.

As it is, for the reason we have given, this appeal is dismissed.