Choudary & Anor v R

Under Terrorism Act 2000 section 12, the offence is a knowing invitation of support for a proscribed organisation. It does not criminalise the mere holding or expression of beliefs, including an invitation to others to share an opinion. Support need not be practical or tangible.

The judge decides whether the words are capable of amounting to an invitation to support. If they are, the jury decides whether the defendant made such an invitation. Once a properly directed jury could convict, there is no separate judicial jurisdiction to halt the prosecution as a disproportionate interference with freedom of expression under articles 9 or 10.

The applicants were convicted at the Central Criminal Court, before Holroyde J and a jury, of inviting support for ISIL, a proscribed organisation, contrary to section 12(1)(a) of the Terrorism Act 2000. Each received five and a half years’ imprisonment.

Before trial, a preparatory ruling defined the offence. An earlier appeal against that ruling was dismissed in R v Choudary and Rahman [2016] EWCA Crim. 61; [2017] 3 All E.R. 459, and the Supreme Court refused leave. The applicants renewed applications for permission to appeal their convictions, challenging the sufficiency of the evidence, the directions, Convention compatibility, and the admission and use of contextual material.

1. The renewed applications for permission to appeal against conviction were refused. The convictions were not arguably unsafe. The summing up was legally correct, fair and comprehensive.
2. Section 12(1)(a) of the Terrorism Act 2000 requires proof that the organisation was proscribed, that the defendant’s words in fact invited support for it, and that the defendant knew he was inviting such support. The provision does not criminalise the expression of personal religious beliefs or opinions, even where others may be invited to share them. It extends, however, to knowing invitations of support which need not take a practical or tangible form.
3. The earlier Court of Appeal ruling in R v Choudary and Rahman [2016] EWCA Crim. 61 was binding and had correctly been applied. Where the issue arises, the judge must decide whether the words are capable of amounting to an invitation to support. If so, the issue must be left to the jury as one of fact. There is no separate jurisdiction for the judge to stop a prosecution, despite sufficient evidence for a properly directed jury to convict, on the basis of an independent assessment that conviction would disproportionately interfere with articles 9 or 10 of the European Convention on Human Rights.
4. The applicants’ talks were capable of being understood, in their full context, as invitations to support ISIL rather than as abstract discussion of a caliphate. It was for the jury to decide that issue. There was ample evidence capable of supporting its verdicts.
5. Evidence of the applicants’ support for ISIL before proscription was relevant and admissible as contextual evidence. It could assist the jury in deciding the meaning and purpose of later speeches and whether the applicants knowingly invited support after proscription. The indictment did not confine the prosecution to specified talks or the oath of allegiance; the jury could consider one or more speeches or writings during the indictment period.

• Supreme Court: The Appellate Committee refused leave to appeal from the earlier Court of Appeal ruling on 7 June 2016.
• Court of Appeal (Criminal Division): In this judgment, the court refused the renewed applications for permission to appeal against conviction: [2017] EWCA Crim 1606.
• Court of Appeal (Criminal Division): The court dismissed the appeal from the preparatory ruling on the construction and Convention compatibility of section 12(1)(a): R v Choudary and Rahman [2016] EWCA Crim. 61; [2017] 3 All E.R. 459.
• Central Criminal Court: Holroyde J made the preparatory ruling on 14 January 2016. Following trial, the applicants were convicted on 28 July 2016 and sentenced on 6 September 2016.