R v. Z

The House of Lords held that a person who belongs or professes to belong to the 'Real Irish Republican Army' commits the offence created by section 11(1) of the Terrorism Act 2000 because the term "The Irish Republican Army" in Schedule 2 to the 2000 Act was intended to be an umbrella description covering splinter manifestations, including the Real IRA. The court construed section 3(1)(a) of the 2000 Act in its historical context and having regard to the statutory scheme (including sections 107 and 108) and predecessor legislation (in particular the 1973 Act).

The Lords rejected the appellant's argument that normal canons of strict construction for penal provisions precluded adopting the umbrella construction, concluding that purpose and historical context justified reading Schedule 2 so as to proscribe the Real IRA. The court also found that the offence was sufficiently clearly defined for article 7 purposes of the Convention.

This appeal arose after Girvan J in the Crown Court at Belfast sustained an objection that the Real Irish Republican Army was not a "proscribed organisation" under the Terrorism Act 2000 and acquitted four defendants on counts of belonging to a proscribed organisation. The Attorney General for Northern Ireland referred the legal point under section 15 of the Criminal Appeal (Northern Ireland) Act 1980 to the Court of Appeal (Northern Ireland), which answered the question in the affirmative. The acquitted person (anonymised as Z) appealed to the House of Lords.

The point referred was whether a person commits the offence under section 11(1) of the 2000 Act if he belongs or professes to belong to the Real Irish Republican Army. The legal issues were:

• Is the Real IRA an organisation listed in Schedule 2 to the Terrorism Act 2000 (section 3(1)(a))?
• Does the Real IRA operate under the same name as an organisation listed in Schedule 2 (section 3(1)(b))?

The House analysed the statutory wording in its historical and legislative context. The Lords traced the development of proscription provisions (1973 and successor Acts), the practice of listing "The Irish Republican Army" as a proscribed body, and the introduction in related legislation of powers to specify particular active groups (the Northern Ireland (Sentences) Act 1998 and its specification orders). They considered sections 107 and 108 of the 2000 Act (which allow opinion evidence about membership of specified organisations) and the policy reasons for treating an umbrella name as proscribing splinter groups.

The court concluded that Parliament used the heading "The Irish Republican Army" as a comprehensive or generic description intended to capture the various manifestations (Official, Provisional, Real, Continuity) and that on the admitted historical facts the Real IRA fell within the proscribed description in Schedule 2. The House therefore answered the referred question in the affirmative and dismissed the appellant's challenge.

(i) Nature of the claim: an interlocutory reference of a point of law following acquittal, asking whether membership of the Real IRA amounts to belonging to a proscribed organisation under the Terrorism Act 2000.

(ii) Issues framed by the court: whether the Real IRA is proscribed under Schedule 2 (section 3(1)(a)) or operates under the same name as a proscribed organisation (section 3(1)(b)), and whether the offence is sufficiently clearly defined for Convention article 7.

(iii) Court’s reasoning: the Lords gave weight to the historical context and mischief addressed by the proscription regime, found that earlier statutory language and practice supported an umbrella construction, and observed that provisions such as sections 107 and 108 of the 2000 Act (and precursor provisions) evidenced Parliament's intention to capture specified active splinter groups as parts of a proscribed organisation. The court rejected the argument that strict penal construction required excluding the Real IRA and held that legal certainty was satisfied.

Appeal dismissed. The House concluded that the term "The Irish Republican Army" in Schedule 2 to the Terrorism Act 2000 was intended as an umbrella description encompassing splinter manifestations such as the Real IRA, so that belonging or professing to belong to the Real IRA fell within section 11(1). The court reached this conclusion by construing section 3 and related provisions in their historical and statutory context and by reference to the specification scheme in the 1998 Sentences Act and sections 107-108 of the 2000 Act.

Acquittal by Girvan J, Crown Court at Belfast (judgment 25 May 2004); Attorney General for Northern Ireland referred a point of law under section 15 Criminal Appeal (Northern Ireland) Act 1980; Court of Appeal (Northern Ireland) answered the question in the affirmative ([2004] NICA 23); appeal to House of Lords, judgment [2005] UKHL 35.