R v ABJ; R v BDN

An offence under section 12(1A) of the Terrorism Act 2000 requires the knowing expression of an opinion or belief objectively supportive of a proscribed organisation. There must also be a risk that an intended recipient will be encouraged to support it. The defendant must know of that risk, and taking it must be objectively unreasonable in the circumstances known to the defendant.

Knowledge that the organisation is legally proscribed is unnecessary. The offence is sufficiently clear and strikes a proportionate balance between freedom of expression and the prevention of terrorism. Once every ingredient is proved, article 10 does not require a separate proportionality assessment before conviction. Judges must nevertheless scrutinise the sufficiency of the evidence robustly and ensure that any sentence is proportionate.

The appellants faced separate Crown Court charges under section 12(1A) of the Terrorism Act 2000 arising from public expressions allegedly supportive of Hamas. Neither case had proceeded to trial, and the underlying facts remained to be determined by juries.

At preparatory hearings, the Crown Court rejected arguments concerning knowledge of proscription and the need for a separate article 10 proportionality assessment. The Court of Appeal dismissed both appeals in [2024] EWCA Crim 1597; [2025] 1 WLR 1909.

The Supreme Court considered the ingredients of the offence and whether section 12(1A) was sufficiently foreseeable and proportionate under article 10 of the European Convention on Human Rights. It also considered whether a jury must conduct an additional proportionality assessment after finding the statutory ingredients proved.

1. The appeals were dismissed unanimously. Section 12(1A) of the Terrorism Act 2000 is compatible with article 10 of the European Convention on Human Rights. The cases were remitted to the Crown Court.

2. Lord Reed, with whom Lord Lloyd-Jones, Lord Sales, Lord Burrows and Lord Richards agreed, held that the prosecution must prove seven matters. The defendant must have expressed an opinion or belief. It must have been objectively supportive of an organisation, judged by how the words would naturally and reasonably be understood in context. The defendant must have known that the opinion or belief was supportive of that organisation. The organisation must then have been proscribed. There must also have been a risk that an intended recipient would be encouraged to support it; the defendant must have known of that risk; and taking it must have been objectively unreasonable in the circumstances known to the defendant.

3. Support for an organisation is distinct from support for an objective which the organisation shares. An expression favouring Palestinian statehood, for example, does not without more express support for Hamas. Express reference to the organisation is unnecessary where the contextual implication is sufficiently clear. Knowledge that the organisation was legally proscribed is not an ingredient because proscription is a matter of law and ignorance of the law affords no defence.

4. “Directed” imports intention: the defendant must intend that the expression be read or heard by the relevant person or audience. Recklessness follows the approach in R v G [2003] UKHL 50. It requires subjective awareness of a real risk and the objective unreasonableness of taking that risk in the circumstances known to the defendant.

5. Section 12(1A) is sufficiently accessible and foreseeable to be “prescribed by law”. It pursues national security, public safety, the prevention of disorder or crime, and the protection of others’ rights. Its carefully confined ingredients strike a fair balance between freedom of expression and the pressing social need to prevent radicalisation and support for terrorist organisations. Those aims extend to terrorism abroad.

6. Proof of every ingredient establishes in principle that conviction is a proportionate interference with article 10. No freestanding proportionality assessment by the trial court or jury is required. Judges must, however, be robust in withdrawing a case where no reasonable jury could be sure of every ingredient, because an overbroad application could chill legitimate public debate. Any sentence must also be proportionate.

1. United Kingdom Supreme Court: The appeals were dismissed unanimously and the cases were remitted to the Crown Court: [2026] UKSC 8.

2. Court of Appeal (Criminal Division): The court dismissed both appeals from preparatory rulings and certified points of law of general public importance: [2024] EWCA Crim 1597; [2025] 1 WLR 1909.

3. Crown Court: In ABJ’s case, HHJ Lodder KC rejected submissions that knowledge of proscription and a jury assessment of proportionality were required. In BDN’s case, HHJ Lucraft KC rejected challenges under articles 7 and 10 and held that proof of the statutory ingredients ensured proportionality.