Reference By the Attorney General Under S. 36 CJA 1972, Re

An offence under section 11(1) of the Terrorism Act 2000 is complete when a person belongs, or professes to belong, to a proscribed organisation. Active participation, an intention to further the organisation’s aims, and post-proscription activity are not further ingredients.

Section 11(2) creates a narrow statutory defence for which the defendant bears a legal burden of proof. It does not alter the gravamen of the offence or infringe the presumption of innocence under article 6(2). In any event, the legal burden is justified and proportionate, having regard to the public interest in suppressing terrorism and the defendant’s particular ability to prove the relevant facts.

The criminalisation of professing membership is generally a proportionate restriction on expression under article 10.

The Attorney General referred questions of law following the acquittal of “A” on two counts under section 11(1) of the Terrorism Act 2000. The counts alleged that A belonged, or professed to belong, to Hamas, a proscribed organisation.

At trial, the Crown accepted that the defence in section 11(2) imposed only an evidential burden. The judge held that A had raised the defence and that the prosecution had not disproved it beyond reasonable doubt. The Court of Appeal was asked to identify the ingredients of section 11(1), determine whether section 11(2) imposed a legal burden, and decide its compatibility with articles 6(2) and 10 of the Convention.

1. The Attorney General’s reference was answered in favour of a legal burden. The ingredients of the offence are those stated in section 11(1) of the Terrorism Act 2000: belonging, or professing to belong, to a proscribed organisation. The offence does not require proof that the defendant was active in the organisation or intended to further its aims.

2. The words requiring the defendant to “prove” the matters in section 11(2) imposed a legal burden, discharged on the balance of probabilities. That construction followed both the ordinary meaning of the provision and the deliberate exclusion of section 11(2) from section 118, which otherwise creates an evidential-burden regime for specified statutory defences.

3. Read as a whole, section 11(2) is a specific and limited exception for persons whose membership or profession pre-dated proscription and who have not participated after proscription. It does not qualify the gravamen of the offence defined by section 11(1). It therefore does not permit conviction while a reasonable doubt remains about an ingredient of the offence, and does not infringe article 6(2).

4. Alternatively, if article 6(2) were engaged, the legal burden would be justified and proportionate. Terrorism presents a serious threat to democratic society. The defendant is particularly able to establish when membership or a profession of membership began and whether there was later participation. Requiring only an evidential burden could place an unrealistic burden on the prosecution.

5. Article 10 did not require an additional element, such as an intention to further the organisation’s aims. Parliament could proportionately criminalise professing membership because that profession itself carries the encouragement or support at which the legislation is directed. The court recognised that exceptional facts might conceivably produce a disproportionate interference, but held that bravado would not do so.

• Court of Appeal (Criminal Division): gave its opinion on the Attorney General’s reference under section 36 of the Criminal Justice Act 1972, answering both questions as stated.
• Crown Court: following the prosecution’s concession that section 11(2) imposed only an evidential burden, ruled that there was no case to answer on the two section 11 counts and entered acquittals.