Hamas appeals dismissed
Juries will not assess proportionality or decide whether defendants knew of ban
Two defendants accused of expressing support for the banned terrorist organisation Hamas have had their pre-trial appeals dismissed. In a judgment delivered by the Court of Appeal yesterday, three judges headed by the lady chief justice of England and Wales upheld rulings made by trial judges at separate preparatory hearings in the Crown Court.
Although these pre-trial hearings cannot normally be reported, Baroness Carr of Walton-on-the-Hill partially lifted reporting restrictions, saying it was in the public interest for the appeal court’s decision to be published “without delay”. The defendants were not identified and nothing was disclosed about the allegations against them.
Sitting with Lord Justice Edis and Mr Justice Murray, Carr said that each defendant had been prosecuted under a provision of the Terrorism Act 2000, introduced in 2019, which says that:
A person commits an offence if the person—
(a) expresses an opinion or belief that is supportive of a proscribed organisation, and
(b) in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.
Each defendant is accused of expressing a belief or opinion supportive of Hamas, which is banned under its full name of Harakat al-Muqawama al-Islamiyya.
ABJ
The first application for leave to appeal against a preparatory ruling was made by a defendant referred to as ABJ. Judge Lodder KC, the senior judge at Kingston Crown Court, had ruled that:
The offence does not require proof that the defendant was aware of the fact that the organisation in question was proscribed; and
proof of the ingredients of the offence is of itself sufficient to ensure that a conviction is a proportionate interference with a defendant’s rights under article 10 of the human rights convention, the right to freedom of expression. No proportionality direction to the jury is required.
At the Court of Appeal on 27 November, Michael Mansfield KC for ABJ argued that
Lodder should have concluded that prosecutors were required to prove awareness of the fact of proscription; and
the judge should have ruled that the jury should be directed to carry out a freestanding proportionality assessment under article 10 as a “stand-alone” defence, coupled with a direction that the words of the statute should be given a “heightened” meaning, including as to “recklessness”.
BDN
The second application for leave to appeal was made by a defendant referred to as BDN. Judge Lucraft KC, the senior judge at the Old Bailey, had also ruled that proof of the ingredients of the offence was of itself sufficient to ensure that a conviction would be a proportionate interference with a defendant’s rights under article 10. Additionally, the judge dismissed a challenge under article 7 of the convention, which is interpreted as requiring a level of legal certainty.
By contrast with ABJ’s counsel, Henry Blaxland KC for BDN accepted that it was not necessary for the prosecution to prove that a defendant was aware that the organisation in question was proscribed.
But BDN’s counsel told the Court of Appeal that
Lucraft should not have ruled that proof of the elements of the offence alone was sufficient to ensure that conviction would be a proportionate interference with BDN’s rights under article 10; and
if the court could not construe the statute in a way that was compatible with BDN’s rights then it should make a declaration of incompatibility.
Knowledge of proscription
Giving judgment, Carr noted that the whole of Hamas was proscribed in November 2021 after the UK government had concluded that Hamas was a “complex but single terrorist organisation”.
She added:
The proscription of an organisation attracts comment and publicity in the media and social media. It is very easy for anyone to find out whether an organisation is proscribed before becoming a member, inviting support for it or wearing its distinctive badges and symbols.
The court found “no basis for an additional requirement in the offence… that the defendant must also know at the time of expressing a supportive belief or opinion that the organisation was proscribed”.
She explained:
The purpose of the provisions is to deprive proscribed terrorist organisations of support and the context is a system where the fact of proscription is a widely publicised and easily ascertainable matter.
It is also part of the context that this offence was enacted to protect national security and public safety from terrorist activity. It would undermine the utility of the provision if proof of knowledge of proscription were required, since this is easily denied.
The effect of the manner in which proscription is achieved is to ensure that anyone who wishes to know whether an organisation to which they are proposing to offer support is proscribed can do so in minutes by using a search engine and a few “clicks”.
Proportionality
Interference with the right to freedom of expression may be justified under the human rights convention if it is proportionate to a legitimate aim, such as national security or public safety.
Carr stressed that the law does not prevent a person from holding or merely expressing an opinion or belief that is supportive of a proscribed organisation. For an offence to be committed, the person must also be at least reckless as to whether a person to whom the expression is directed would be encouraged to support a proscribed organisation.
She added:
The offence requires the expression of an opinion or belief that is supportive of Hamas and not merely that it may be supportive of the achievement of aims which Hamas shares. That is an important distinction which will require the court deciding the case to pay careful attention to what was said and done, the circumstances in which that happened and the meaning which the speaker intended to convey.
The Terrorism Act, as originally drafted, criminalises a person who “invites” support for a proscribed organisation with the required intent. The more recent offence, said the court, “catches an expression of opinion or belief expressed, not knowingly but recklessly as to its effect: the defendant must be shown to have been reckless as to whether a person to whom they have directed a statement of belief or opinion will be encouraged to support a terrorist organisation”.
The extension of the fault element from specific intent to recklessness was not enough to alter a previous proportionality assessment, the court concluded:
We therefore consider that the judges below were right to conclude that the ingredients of the offence themselves satisfied the proportionality requirement. This means that the jury at trial will not be required or permitted to carry out an assessment of the proportionality of a criminal conviction attaching to the alleged behaviour if they find the elements of the offence proven. There will thus be no need for a proportionality direction.
Having granted leave, the Court of Appeal declined to make a declaration of incompatibility and dismissed both appeals.
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