Choudary & Anor v REGINA

Factual and Procedural Background

The appellants, referred to as Appellant 1 and Appellant 2, were charged on an indictment containing two counts under section 12 of the Terrorism Act 2000 (the 2000 Act) for inviting support for a proscribed organisation, specifically the Islamic State of Iraq and Levant ("ISIL"). Appellant 1 was charged with inviting support for ISIL between 29 June 2014 and 6 March 2015, and Appellant 2 with a similar offence in identical terms.

On 14 January 2016, a preparatory hearing was held at the Central Criminal Court pursuant to section 29(1B) of the Criminal Procedure and Investigations Act 1996 (CPIA 1996). At this hearing, the judge ruled on the legal ingredients of the offence under section 12(1)(a) of the 2000 Act. The appellants appealed this ruling with the judge's permission under section 35(1) of the CPIA 1996.

The judge held that the prosecution must prove that: (i) the organisation was proscribed under the 2000 Act; (ii) the defendant used words that in fact invited support for that organisation; and (iii) the defendant knew at the time that he was inviting support. It was agreed that merely holding supportive views or expressing intellectual or moral support did not constitute the offence, and specific intent was not required, only knowledge of the invitation.

The Crown alleged that the appellants openly supported ISIL before it was proscribed and continued after proscription by inviting support through public talks and an Oath of Allegiance posted online. The appellants denied that their talks invited support for ISIL or that they intended to do so.

The statutory framework and legislative history of the Terrorism Act 2000, including its predecessors and the regime of proscription, were detailed to contextualise the offences charged.

Legal Issues Presented

1. What is the correct meaning and scope of the phrase "inviting support" under section 12(1)(a) of the Terrorism Act 2000?
2. Whether the offence under section 12(1)(a) requires proof that the defendant invited others to join him in providing practical or tangible support, or whether it includes broader forms of support including intellectual or moral support.
3. Whether the interpretation of "inviting support" under section 12(1)(a) is compatible with rights protected under Articles 7, 9, and 10 of the European Convention on Human Rights and Articles 10 and 11 of the EU Charter of Fundamental Rights.

Arguments of the Parties

Appellants' Arguments

• The actus reus of the offence requires an invitation to others to join the defendant in providing practical or tangible support to a proscribed organisation.
• The broader interpretation of "inviting support" to include intellectual or moral support is incorrect and incompatible with human rights protections, particularly Articles 7, 9, and 10 of the European Convention on Human Rights and Articles 10 and 11 of the EU Charter.
• The phrase "invite" implies that the defendant is already engaged in providing support or intends to do so, which the Crown must prove.
• The offence is insufficiently precise and uncertain, violating the principle of legality and Article 7 of the Convention.
• There is no precedent of prosecutions for inviting moral or intellectual support under similar provisions, suggesting the broader interpretation is novel and problematic.
• The absence of an equivalent offence for inviting support for "murderous dictators" or war criminals raises an anomaly in the statutory scheme.

Crown's Arguments

• The ordinary and ordinary meaning of "inviting support" includes both practical and intangible forms of support such as encouragement, approval, or advocacy.
• The offence does not require the defendant to be personally engaged in providing support or to invite others to join in such conduct.
• Support, including intellectual support, strengthens and promotes the proscribed organisation and is therefore criminalised.
• The offence is clear and sufficiently precise to meet the principle of legality and does not infringe Convention rights.
• The offences in Part II of the 2000 Act are essential to the proscription regime and enable the State to counter terrorist organisations effectively.
• Convention rights are engaged but the interference with freedom of expression is justified, necessary, and proportionate given the legitimate aims of national security, public safety, and prevention of disorder or crime.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory language, legislative history, and relevant case law to determine the proper construction of section 12(1)(a) of the Terrorism Act 2000. It concluded that the words "invite" and "support" have their ordinary English meaning, which encompasses both practical/tangible support and broader forms such as encouragement, advocacy, or intellectual support. The court rejected the appellants' argument that the offence requires proof that the defendant invited others to join him in providing support, finding no textual basis for such a limitation.

The court emphasised that the offence requires knowledge by the defendant that he is inviting support for a proscribed organisation and that there must be proof of an actual invitation, distinguishing this from mere expression of personal beliefs or opinions.

The court considered the principle of legality and found the offence sufficiently precise to enable individuals to understand the boundaries of permissible conduct. It rejected arguments that the offence was vague or uncertain.

Regarding human rights, the court acknowledged that the offence engages Article 10 rights but found that the interference with freedom of expression was prescribed by law, pursued legitimate aims such as national security and public safety, and was necessary and proportionate in a democratic society. The court rejected the appellants' contention of a "bright line" rule requiring incitement to violence, noting that the jurisprudence does not support such a rigid distinction and that the offence targets conduct that strengthens terrorist organisations.

The court further noted that the proscription regime and associated offences are integral to Parliament's measures to combat terrorism and protect democratic society. It also highlighted the importance of addressing such issues at an early stage in proceedings to avoid unnecessary costs and delays.

Holding and Implications

The court DISMISSED the appeal.

The holding confirms that the offence under section 12(1)(a) of the Terrorism Act 2000 includes inviting support for a proscribed organisation in a broad sense, encompassing both practical and intangible forms of support, provided the defendant knowingly invites such support. The decision affirms the compatibility of this interpretation with the European Convention on Human Rights and the EU Charter, finding any interference with freedom of expression justified and proportionate.

The direct effect is that the appellants' convictions may proceed on the basis of the judge's ruling. No new precedent was established beyond clarifying the interpretation of "inviting support" under section 12(1)(a).