Section 12(1) Requires a Knowing Invitation of Organisational Support, Not Support for a Particular Terrorist Act
Commentary on Greenstein v R [2026] EWCA Crim 48
England and Wales Court of Appeal (Criminal Division), 4 February 2026
Introduction
This decision concerns an application for leave to appeal against three rulings made at a mandatory preparatory hearing in a terrorism prosecution. The applicant was charged under section 12(1) of the Terrorism Act 2000 with inviting support for Hamas, a proscribed organisation, through social-media posts and a linked blog published on 7 October 2023.
The posts expressed support for what the applicant called the “Gaza Ghetto Uprising”, while the linked article congratulated Hamas on its attack. The applicant denied inviting support for Hamas and denied knowing or intending that his publications had that effect. He also contended that support for conduct believed to be lawful self-defence could not constitute the offence.
The Court of Appeal, constituted by Lord Justice Edis, Mr Justice Turner and Mr Justice Eyre, considered:
- whether section 12(1) requires an invitation to support an act of terrorism, rather than merely support for the proscribed organisation;
- whether the applicant’s earlier political writings were admissible as evidence of his state of mind; and
- whether alleged apparent bias on the part of the Solicitor General rendered the prosecution an abuse of process.
Summary of the Judgment
The Court of Appeal refused leave to appeal on all three grounds.
Section 12(1)
The prosecution must prove that:
- the organisation was proscribed;
- the defendant used words which in fact invited support for that organisation; and
- the defendant knew that the words invited support for the organisation.
There is no additional requirement that the invited support must relate to a particular terrorist act or to conduct falling within section 1 of the Terrorism Act 2000. A belief that the organisation was acting lawfully in self-defence, in defence of others or to resist false imprisonment is therefore not a separate defence if the statutory elements are proved.
Earlier political writings
The applicant’s earlier writings criticising Hamas were accepted as potentially relevant to the meaning and knowledge issues. His broader writings about Israel, Gaza and Palestinian resistance were not relevant to whether the publications of 7 October 2023 invited support for Hamas. The trial judge was therefore right to exclude them.
Apparent bias and abuse of process
A fair-minded and informed observer would not consider there to be a real possibility that the Solicitor General was biased when permitting the Director of Public Prosecutions to consent to the prosecution. The decision was narrow, the DPP remained the principal decision-maker, and permission was the only reasonable outcome on the material.
In any event, apparent bias would not automatically require a stay. A “limb 2” abuse-of-process application always requires the court to balance the public interest in trying alleged offences against the need to protect the integrity of the criminal justice system.
Legal and Procedural Framework
Preparatory hearings
The preparatory hearing was mandatory under section 29(1B) of the Criminal Procedure and Investigations Act 1996 because the charge was a terrorism offence. Under section 31, the trial judge may rule on admissibility, questions of law and joinder or severance.
Such rulings are not necessarily immutable. Section 31(11) allows the trial judge to vary or discharge a ruling where the interests of justice require. This justified appellate restraint: clear legal errors may be corrected before trial, but fact-sensitive matters may be better reconsidered as the evidence develops.
The Court assumed, without deciding, that all three challenged decisions fell within section 31 and were therefore appealable under section 35.
The two offences under section 12
Section 12(1) criminalises an invitation of support for a proscribed organisation. Section 12(1A), introduced in 2019, criminalises the expression of an opinion or belief supportive of such an organisation where the speaker is reckless as to whether another person will be encouraged to support it.
The distinction was central. Section 12(1) concerns an actual invitation and knowledge of its character. Section 12(1A) concerns supportive expression accompanied by recklessness as to encouragement. Reasoning about one provision cannot automatically be transferred to the other.
Analysis
1. Inviting support for an organisation is not limited to supporting terrorist acts
The applicant proposed reading section 12(1) as though it referred to “support for the use of the means identified in section 1” by a proscribed organisation. On that construction, inviting support for allegedly lawful acts by Hamas would fall outside the offence.
The Court rejected this proposed insertion. The statutory object is the proscribed organisation itself, not merely a particular act committed by it. Once the prosecution proves a knowing invitation of support for the organisation, it need not additionally prove that the support concerned a specific act of terrorism.
This does not mean that every statement agreeing with an aim or view held by a proscribed organisation is criminal. The prosecution must still prove an invitation to support the organisation. Agreement with a political objective, or expression of a personal belief also held by the organisation, remains conceptually distinct from organisational support.
The applicant relied on Article 10 of the European Convention on Human Rights, arguing that freedom of expression required a narrower and proportionate interpretation. The Court held that Parliament had addressed the balance through the statutory proscription regime, which applies to a limited class of organisations. The courts could not add an element inconsistent with the authoritative interpretation of section 12(1).
The decision also confirms an important distinction in the mental element: the defendant must know that he is inviting support for the organisation, but need not know the separate legal fact that the organisation has been proscribed.
2. The limits of “mindset” evidence
The Court accepted the general proposition that a judge must exclude irrelevant evidence but has no discretion to exclude defence evidence merely because it is inconvenient, political or emotive if it is relevant and otherwise admissible.
Nevertheless, relevance depends on the issues created by the offence. The applicant’s longstanding views about Israel, Gaza and Palestinian resistance did not establish whether his words on 7 October 2023 invited support for Hamas or whether he knew that they did so. Those views were principally directed to a proposed justification—self-defence—which was not legally available under the Court’s interpretation of section 12(1).
The Court drew a careful distinction between personal history and genuine contextual evidence. Evidence explaining what Hamas did on 7 October 2023 might assist a jury in understanding the words used. By contrast, political opinions expressed by the applicant over many preceding years did not form part of the objective context in which readers would understand the publication.
The ruling therefore does not create a blanket prohibition on prior writings. Earlier material may be admissible where it bears on meaning or knowledge—as illustrated by the prosecution’s acceptance that prior criticism of Hamas could be relevant. The question is whether the particular material logically assists in resolving an issue the jury must decide.
3. Apparent bias in Law Officer consent
Section 117 of the Terrorism Act 2000 requires the DPP’s consent to a prosecution. Where an offence appears to have been committed abroad or for a purpose connected with another country’s affairs, the DPP may give consent only with the Attorney General’s permission. In this case, that function had been delegated to the Solicitor General.
The applicant alleged apparent bias based on the Solicitor General’s Jewish communal involvement, views concerning Israel and Palestine, and a 2016 article which had referred to the applicant as a “problematic” figure. The Court found that this evidence did not establish a real possibility of bias.
The context was decisive. The DPP independently applied the evidential and public-interest stages of the Code for Crown Prosecutors. The Solicitor General’s role was confined to permitting that consent because of the case’s foreign-affairs connection. On the information before the Court, the prosecution plainly met the realistic-prospect threshold and no countervailing public-interest factor had been identified. Permission was therefore the only reasonable decision.
The Court also stressed that Law Officers are subject to a high obligation to act impartially in the public interest. Unlike a judge who may recuse himself or herself, the Solicitor General could not simply transfer the function to an unchallenged decision-maker, particularly where the applicant maintained that both Law Officers were disqualified.
4. Apparent bias does not automatically produce a stay
The Court rejected the proposition that apparent bias in granting statutory permission must inevitably terminate the prosecution. Even if apparent bias had been established, the trial judge would still have had to undertake the second-stage abuse-of-process assessment.
That assessment balances:
- the public interest in trying those accused of serious offences; and
- the public interest in preventing executive misconduct from undermining confidence in criminal justice.
Here, the prosecution would continue under the independent control of the DPP and guilt would be determined by an independent judge and jury. Any possible defect in the preliminary permission decision came nowhere near the level required to make a trial offensive to justice and propriety.
Precedents Cited
This was the controlling authority on section 12(1). It established the three elements of proscription, an actual invitation of support and knowledge that support was being invited. It also distinguished organisational support from merely expressing a personal belief. The Court held that the trial judge was bound to follow it.
R v ABJ and BDN [2024] EWCA Crim 1597; [2025] 1 WLR 1909
This authority concerned section 12(1A), not section 12(1). Its observation that a proscribed organisation exists to pursue its beliefs by terrorist means was made when distinguishing an opinion shared with an organisation from an opinion supportive of it. It did not redefine “invites support” or add a terrorist-act requirement to section 12(1).
R v. Simpkins [1973] Cr App R 696
The trial judge had relied on this case for the principle that criminal proceedings should not become a forum for political manifestos. The Court of Appeal held that it offered little assistance on the particular question of relevance. Exclusion was nevertheless correct because the disputed material did not bear on an issue arising under section 12(1).
Pepper v Hart
The applicant invoked this authority by analogy, arguing that prior writings could resolve ambiguity as external material sometimes assists statutory interpretation. The analogy failed because the applicant’s historic personal beliefs did not constitute objective context for the meaning of his later publications.
This supplied the test for apparent bias: whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias. Applying that test in its full institutional context, the Court found no apparent bias.
These authorities identify the two categories of abuse of process: cases in which a fair trial is impossible, and cases in which trying the defendant would offend the court’s sense of justice and propriety. The application fell within the second category.
R v. Warren established that rigid categories should be avoided and that a balance must be struck even where executive misconduct is alleged. The Court rejected the argument that apparent bias created an automatic class in which a stay was inevitable.
R v Ng [2024] EWCA Crim 493; [2024] 1 WLR 3221
This case articulated a two-stage approach: first identify prosecutorial misconduct, then determine whether it justifies a stay after balancing the competing public interests. It directly supported the Court’s approach.
R. v BKJ [2024] EWCA 1354
This authority recognised that “limb 2” abuse is not confined exclusively to prosecutorial misconduct, while stressing that a stay without such misconduct will be exceptionally rare. Apparent bias, without bad faith or other misconduct, could not by itself justify a stay here.
Authorities illustrating exceptional abuse categories
R v Latif [1996] 1 WLR 104, R v Mullen [2000] QB 520, R v Looseley [2001] 1 WLR 2060 and R v Croydon Justices, Ex p Dean [1993] QB 769 were cited through the abuse-of-process authorities as examples involving executive misconduct, abduction, entrapment or breach of an assurance not to prosecute. They illustrated why serious misconduct often favours a stay but did not create inflexible rules.
R. (oao Campbell) v. Attorney General [2025] EWHC 1653 (Admin); [2026] 2 WLR 65
This decision held that certain Law Officer functions concerning enforcement proceedings are non-justiciable or reviewable only on restricted grounds such as dishonesty, bad faith or exceptional circumstances. The Court treated it as confirmation, rather than the basis, of its conclusion that apparent bias did not invalidate the permission decision.
Impact of the Decision
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Terrorism speech offences: Defendants charged under section 12(1) cannot require the prosecution to prove that the invited support concerned a specific terrorist act. The focus remains on support for the proscribed organisation.
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Protection of political expression: Mere agreement with an organisation’s aims or expression of a shared opinion remains distinguishable from inviting support for the organisation.
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Defence evidence: Courts must assess political or “mindset” evidence by ordinary relevance principles, not exclude it merely because it is emotive. Historic beliefs will usually be inadmissible unless they illuminate meaning, knowledge or another live issue.
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Law Officer decisions: Religious identity, communal involvement or political views do not by themselves establish apparent bias. The observer must consider the decision-maker’s precise statutory role and the available options.
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Abuse of process: Apparent bias at an early consent stage does not automatically nullify a prosecution. A stay remains exceptional and requires a broader assessment of institutional integrity and the public interest.
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Preparatory appeals: The Court encouraged precision in defence statements and restraint in pre-trial appeals, particularly where the trial judge can revisit a ruling under section 31(11).
The judgment does not determine the applicant’s guilt. Whether the publications actually invited support for Hamas, and whether the applicant knew that they did so, remained matters for the trial tribunal.
Complex Concepts Simplified
- Proscribed organisation
- An organisation formally banned under terrorism legislation. Its proscription is an objective element of the offence.
- Invitation of support
- A communication asking or encouraging others to support the organisation. It is more than simply agreeing with one of its political views.
- Mens rea
- The required mental element. Under section 12(1), the defendant must know that the words invite support for the organisation.
- Probative value
- The degree to which evidence logically helps to prove or disprove a fact that matters in the case.
- Apparent bias
- A real possibility of bias as assessed objectively by a fair-minded and informed observer; actual prejudice need not be proved.
- Limb 2 abuse of process
- A case in which a fair trial may still be possible, but proceeding would offend justice and propriety or damage confidence in the criminal justice system.
- Functus officio
- A decision-maker who has completed the task and has no power to revisit it. A trial judge is not functus officio regarding a preparatory ruling because section 31(11) permits reconsideration.
- Justiciability
- Whether a decision is of a kind that a court may review. Some Law Officer enforcement decisions are subject to little or no judicial review.
Conclusion
Greenstein v R confirms that section 12(1) is directed at knowing invitations of support for a proscribed organisation, not merely invitations to support identifiable acts of terrorism. A claimed belief in the lawfulness of the organisation’s conduct does not provide an additional defence.
The judgment also clarifies that political evidence must satisfy ordinary relevance requirements and that alleged apparent bias in Law Officer consent does not automatically make a prosecution abusive. The decision reinforces both the statutory boundaries of terrorism offences and the exceptional nature of staying a prosecution on institutional-integrity grounds.