ABJ v REX

For an offence under Terrorism Act 2000, section 12(1A), the prosecution must prove that the organisation was proscribed, that the defendant expressed a supportive opinion or belief, knew its supportive character, and was reckless as to whether the directed person would be encouraged to support the organisation. Knowledge of proscription is not required. The statutory ingredients themselves strike the proportionality balance under Article 10. Where those ingredients are proved, the jury neither is required nor permitted to conduct a separate proportionality assessment. The provision is compatible with Articles 7 and 10.

Two applicants sought leave to appeal rulings made at preparatory hearings concerning prosecutions under section 12(1A) of the Terrorism Act 2000. In ABJ’s case, the Crown Court at Kingston upon Thames held that knowledge of the organisation’s proscribed status was unnecessary and that proof of the statutory ingredients made a conviction proportionate under Article 10. In BDN’s case, the Central Criminal Court reached the same conclusion and rejected an Article 7 challenge. The applicants argued that knowledge of proscription, heightened statutory meanings, jury directions on free speech, and a freestanding proportionality defence were required. The central issues were the ingredients of section 12(1A) and whether the offence was compatible with Articles 7 and 10.

The court granted leave to appeal but dismissed both appeals and declined to make a declaration of incompatibility.

1. Ingredients of the offence. Under section 12(1A) of the Terrorism Act 2000, the prosecution must prove that the organisation was proscribed, that the defendant expressed an opinion or belief supportive of it, that the defendant knew the expression was supportive, and that the defendant was reckless as to whether a person to whom it was directed would be encouraged to support the organisation. Recklessness required awareness of that risk and that taking it was objectively unreasonable in the circumstances known to the defendant, applying R v G [2003] UKHL 50.
2. Knowledge of proscription. Knowledge that the organisation was proscribed was not an additional ingredient. The presumption of mens rea was rebutted by compellingly clear implication from the statutory context and purpose. Proscription was a matter of law, publicly and readily ascertainable, and requiring proof of knowledge would undermine the statutory purpose. The express recklessness requirement was inconsistent with an additional knowledge requirement.
3. Meaning of support. An opinion or belief supportive of an organisation was different from an opinion merely shared by the organisation or supportive of aims which it shared. The court deciding the case must examine what was said and done, the surrounding circumstances, and the meaning intended. Section 12(1A) did not criminalise holding or merely expressing a supportive opinion; the directed expression and recklessness as to encouragement were also required.
4. Convention rights and proportionality. The court adopted the statutory-offence approach in Re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 and applied the proportionality analysis in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39. The objective of countering terrorism was sufficiently important, the offence was rationally connected to it, and the earlier offence under section 12(1) had proved insufficient. In the context of the proscription regime, the balance struck by section 12(1A) was proportionate. The Article 7 challenge added nothing material to the Article 10 challenge. No freestanding proportionality assessment or proportionality direction was therefore required at trial.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1597, leave was granted, both appeals were dismissed, and no declaration of incompatibility was made.
• Crown Court at Kingston upon Thames: HHJ Lodder KC ruled that knowledge of proscription was unnecessary and that the statutory ingredients themselves secured proportionality under Article 10.
• Central Criminal Court: The Recorder of London reached the same Article 10 conclusion and dismissed the Article 7 challenge.