Choudary & Anor v R.

Section 12(1)(a) of the Terrorism Act 2000 prohibits a knowing invitation of support from others for a proscribed organisation. “Support” bears its ordinary meaning and is not confined to practical or tangible assistance. The prosecution need not prove that the defendant provides, or intends to provide, support personally, or invites others to join him in doing so.

The offence does not criminalise merely holding or expressing favourable views, or inviting another to share an opinion. Whether words amount to an invitation of support is a question for the jury. The provision is sufficiently clear for article 7 purposes. Its limited interference with freedom of expression is justified under articles 9 and 10 where it targets a knowing invitation of support for an organisation already lawfully proscribed. Article 10 contains no rule that speech may be criminalised only if it expressly advocates violence.

The appellants were charged with inviting support for ISIL, a proscribed organisation, contrary to section 12(1)(a) of the Terrorism Act 2000. The Crown alleged that, after proscription, they made online speeches and issued an online oath of allegiance which invited general support for the Islamic State declared by ISIL.

At a preparatory hearing in the Central Criminal Court, Holroyde J ruled that the offence required proof that the organisation was proscribed, that the defendant’s words in fact invited support for it, and that the defendant knew that this was so. He held that support was not restricted to practical or tangible support. The appellants appealed with permission under the Criminal Procedure and Investigations Act 1996, contending for a narrower construction and alleging incompatibility with Convention and EU Charter rights.

1. Appeal dismissed. The ordinary meaning of “invite” and “support” in section 12(1)(a) of the Terrorism Act 2000 governs. The offence is complete where a defendant knowingly invites third parties to support a proscribed organisation. It is unnecessary to prove that the defendant himself supports, or intends to support, that organisation, or that he invited others to act jointly with him.

2. Support may be practical or tangible, but it may also consist of approval, endorsement, advocacy or other non-tangible support. The exclusion of money or other property in section 12(1)(b) does not create a genus restricting section 12(1)(a). It removes conduct dealt with under section 15. The other offences in section 12, and the separate offence concerning uniforms and articles in section 13, did not justify a narrower construction.

3. The prosecution must prove that the organisation was proscribed, that the words used in fact invited support for it, and that the defendant knew he was issuing that invitation. Mere personal belief, personal approval, or an invitation to share an opinion does not suffice. Whether particular words cross that boundary is for the jury.

4. The provision is sufficiently clear and foreseeable to satisfy article 7. It pursues legitimate aims of national security, public safety, prevention of disorder and crime, and protection of others’ rights. Its application is proportionate because it does not prohibit offensive opinions as such; it prohibits a knowing invitation of support for an organisation already proscribed as concerned in terrorism.

5. The Strasbourg authorities disclosed no absolute article 10 rule requiring advocacy or encouragement of violence before speech may be criminalised. Incitement to violence is an important contextual consideration in proportionality, not a decisive threshold. Article 9 and the EU Charter added nothing capable of altering the result.

6. The court also stated, obiter, that fundamental legal issues capable of determining a terrorism prosecution should be identified and resolved at an earlier stage, before extensive trial preparation costs are incurred.

• Court of Appeal (Criminal Division): dismissed the appellants’ appeal in [2016] EWCA Crim 61 and upheld Holroyde J’s preparatory ruling on the ingredients of section 12(1)(a).
• Central Criminal Court: Holroyde J ruled at a preparatory hearing that section 12(1)(a) required a knowing invitation of support for a proscribed organisation, and that support was not confined to practical or tangible assistance.