ABJ, R. v

Factual and Procedural Background

This opinion concerns two pre-trial criminal appeals about the compatibility of section 12(1A) of the Terrorism Act 2000 (as inserted by the Counter-Terrorism and Border Security Act 2019) with the right to freedom of expression under article 10 of the European Convention on Human Rights, as given effect by the Human Rights Act 1998.

The appeals arise before any jury trial, and the defendants’ names were anonymised in the proceedings. The parties are the two Appellants and the Crown, with the Home Secretary intervening.

Appellant 1 was charged with an offence under section 12(1A), alleged to have been committed by giving a short speech at an event organised by Organisation A in The City Centre on a date in October 2023. Although the facts were not established (trial pending), it was agreed for the purposes of the appeal that a recording of an edited version of the speech was later published online by Newspaper A, after which Appellant 1 was arrested and charged. At a preparatory hearing, the trial judge rejected two defence applications: (i) that the prosecution must prove Appellant 1 knew the relevant organisation was proscribed; and (ii) that the jury must conduct a freestanding proportionality assessment under article 10 when considering guilt. Appellant 1 appealed those rulings.

Appellant 2 was charged with an offence under section 12(1A), alleged to have been committed by holding a placard referencing the relevant proscribed organisation and making a short amplified statement outside a government location in The City in October 2023. The video was recorded on Appellant 2’s phone and was not livestreamed or shared by him. At a preparatory hearing, the judge rejected submissions including that section 12(1A) was too uncertain (article 7 / “prescribed by law” for article 10) and that the proceedings were a disproportionate interference with article 10. Appellant 2 appealed.

The Court of Appeal dismissed both appeals in [2024] EWCA Crim 1597; [2025] 1 WLR 1909, and certified points of law of general public importance. Permission to appeal was granted on the grounds relating to the certified proportionality/read-down question, and refused on grounds relating to a separate certified question on mens rea (though mens rea was considered within the Supreme Court’s analysis of the offence’s ingredients). The Supreme Court (opinion of Judge [Reed], with whom Judge [Sales], Judge [Lloyd-Jones], Judge [Burrows] and Judge [Richards] agreed) dismissed the appeals and remitted the cases to the Crown Court.

Legal Issues Presented

1. What must the prosecution prove to establish the offence under section 12(1A) of the Terrorism Act 2000 (the ingredients/mental elements of the offence)?
2. Is section 12(1A) compatible with article 10 ECHR, including whether it is “prescribed by law” and whether it is a proportionate/necessary interference in a democratic society?
3. If convictions under section 12(1A) engage article 10, is a separate freestanding proportionality assessment (beyond proof of the offence’s elements) required at trial, and (if so) must it be conducted by the jury?

Arguments of the Parties

Appellant 1’s Arguments

• The prosecution should be required to prove Appellant 1 knew the relevant organisation was proscribed.
• To protect article 10 rights, the jury should be directed to conduct a freestanding proportionality assessment when deciding guilt.
• The statutory words in section 12(1A) should be given a “heightened” meaning (as argued in the Court of Appeal).

Appellant 2’s Arguments

• Section 12(1A) is incompatible with article 10 because it is too vague/uncertain to be “prescribed by law” (and was also argued to be incompatible with article 7).
• Section 12(1A) does not adequately balance counter-terrorism aims with political expression; prosecution/conviction would be disproportionate under article 10.
• Alternatively, the jury should be directed to assess proportionality under article 10 and to apply a “heightened” meaning to the offence elements.

The Crown’s and Intervener’s Positions (as reflected in the opinion)

• The offence does not require proof that a defendant knew the organisation was proscribed, since proscription is a matter of law and ignorance of the law is no defence.
• Section 12(1A) is sufficiently clear and structured (including a subjective-objective recklessness test) to be “prescribed by law” and proportionate under article 10 when its ingredients are proved.
• No additional freestanding proportionality assessment at trial is required beyond proof of the statutory ingredients; proportionality of sentence remains relevant.

Table of Precedents Cited

Court's Reasoning and Analysis

1) Ingredients of section 12(1A). The Court stressed that the offence is not “expressing support” simpliciter. It criminalises expressing an opinion or belief supportive of a proscribed organisation and doing so with the required recklessness about encouraging others.

The Court broke the statutory elements into a structured set of requirements:

• Expression (not mere belief): the opinion/belief must be expressed.
• Supportive of the organisation (not merely its aims): it is insufficient that the statement aligns with an organisation’s objectives; it must be supportive of the organisation itself. This distinction matters for political debate (eg support for Palestinian statehood is not the same as support for the proscribed organisation).
• Objective meaning: whether the opinion/belief is supportive is judged objectively, by how the words would naturally and reasonably be understood in their circumstances.
• Knowledge of supportive meaning: applying the general principle that statutory offences require mens rea unless clearly strict, the defendant must knowingly express an opinion/belief that is supportive of the organisation (ie intend to express supportive meaning).
• Proscription as a matter of law: the organisation must in fact be proscribed at the time, but the defendant need not know it is proscribed; requiring such knowledge would conflict with “ignorance of law is no excuse” and make the offence practically unworkable. The Court also noted it is easy to ascertain proscription status.
• Recklessness as to encouragement: “reckless” takes the ordinary criminal law meaning (R v G): subjective awareness of a risk that a person to whom the expression is directed will be encouraged to support the proscribed organisation, and objective unreasonableness in taking that risk in the circumstances known to the defendant.
• “Directed” requires intention: the expression must be intentionally directed to the audience; accidental/inadvertent reach is insufficient (the Court gave examples distinguishing intended audiences from later republication by others).

The Court summarised that, for jury trial, the jury must be sure of each element; if the evidence could not allow a reasonable jury to be sure, the judge must uphold a no-case-to-answer submission.

2) Article 10 framework and engagement. It was accepted that the charged statements fell within article 10’s scope (though the Court noted that in some terrorism-related cases article 17 may prevent reliance on article 10).

3) “Prescribed by law”. The Court held section 12(1A) has a clear domestic legal basis and is sufficiently accessible and foreseeable. Absolute precision is not required; some generality is inevitable and judicial directions elucidate application. The Court considered the statutory wording (“supportive of a proscribed organisation”; recklessness as to encouragement of support) clear enough for individuals, with legal advice if needed, to regulate conduct.

4) Legitimate aims. The Court accepted section 12(1A) pursues legitimate aims under article 10(2): national security, public safety, prevention of disorder/crime, and protection of others’ rights. It emphasised the legislative aim of countering radicalisation and encouragement of support for proscribed organisations, including in the international terrorism context.

5) Necessity/proportionality (“necessary in a democratic society”). The Court recognised that content-based restrictions on political speech require compelling justification, but found a pressing social need given the threat of terrorism and radicalisation. It placed weight on:

• the fact that the offence concerns support for organisations already proscribed through statutory and parliamentary processes;
• the offence’s limited reach: it does not criminalise support for an organisation’s aims, but targets knowing expression supportive of the organisation combined with culpable recklessness about encouraging support;
• alignment with ECHR case law focusing on objective meaning, context, and risk of encouragement, while section 12(1A) additionally requires culpable states of mind;
• institutional and constitutional considerations: Parliament assessed the balance in enacting section 12(1A), with evidence taken and civil liberties concerns addressed, supporting a wider margin of appreciation in counter-terrorism.

The Court added two qualifications: (i) because context-sensitive application is unavoidable, judges must be robust in scrutinising whether the evidence could allow a reasonable jury to be sure of all elements (including the existence and awareness of a relevant risk of encouragement), and must end the case if not; and (ii) sentencing must be proportionate, which is a distinct and continuing Convention-relevant safeguard.

6) No freestanding proportionality determination at the verdict stage. The Court rejected the argument that, beyond proving the offence elements, a separate proportionality assessment is required for conviction compatibility. It held the proportionality balance is embedded in the statutory ingredients (subject to proportionality of penalty), and the trial court’s role is to decide whether those ingredients are proved on the facts. Since the premise failed, it was unnecessary to decide whether (if required) such an assessment would have to be done by the jury; the Court nevertheless observed that Convention compatibility is a question of law and does not naturally fall within the jury’s role.

Holding and Implications

DISMISSED: The Court dismissed both appeals, answered the certified proportionality/read-down question in the negative, rejected the contention that section 12(1A) is inherently incompatible with article 10 (including on “prescribed by law” and proportionality grounds), and rejected the contention that a jury must conduct a separate freestanding proportionality assessment in addition to determining whether the offence’s ingredients are proved.

The cases were remitted to the Crown Court for trial. The direct effect is that any trials must proceed on the basis that: (i) the prosecution need not prove knowledge of proscription; (ii) the jury’s task is to determine whether the statutory elements (including knowledge and recklessness) are proved; and (iii) the judge must ensure there is sufficient evidence for a reasonable jury to be sure of each element, and must ensure any sentence imposed is proportionate. The opinion did not create a new offence or amend section 12(1A); it upheld its compatibility in principle where the statutory elements are established.