Two protesters faced charges under section 12(1A) of the Terrorism Act 2000 for speeches allegedly supporting Hamas. The Supreme Court held the offence compatible with article 10. It set out the offence’s seven ingredients and ruled that juries need not conduct a separate proportionality assessment.
Background
These conjoined appeals arose from preparatory hearings in two prosecutions under section 12(1A) of the Terrorism Act 2000, inserted by section 1 of the Counter-Terrorism and Border Security Act 2019. The provision makes it an offence for a person to express an opinion or belief that is supportive of a proscribed organisation and, in doing so, to be reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation. The maximum penalty on indictment is 14 years’ imprisonment. Both appellants were anonymised because the appeals preceded jury trials, and no facts had been established.
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The first appellant (ABJ)
ABJ is a young woman with no previous convictions. On 8 October 2023 she gave a speech of about four minutes at a Palestine Solidarity Campaign event in Brighton. In it she described the previous day as a victory
and referred to freedom fighters
breaking out of the blockade. She did not mention Hamas. Police present took no action. She was arrested after the Daily Mail published edited footage online. Her defence statement asserted that she had very limited information about the events of the previous day and was unaware that they were primarily attributed to Hamas. At the preparatory hearing she sought two rulings: that the prosecution must prove her knowledge that Hamas was proscribed, and that the jury must assess the proportionality of a conviction under article 10. HHJ Lodder KC refused both.
The second appellant (BDN)
On 17 October 2023 BDN stood outside Downing Street with a placard. One side read HAMAS is the vanguard of the Resistance—Avi Shlaim
and the other read You won’t destroy HAMAS—Tony Blair
. Using a loudhailer, he declared his support for armed physical force resistance in the Holy Land
. The Crown’s case was that he had impliedly expressed support for Hamas and was at least reckless as to encouraging others. He argued that section 12(1A) was too uncertain to be prescribed by law
and was a disproportionate interference with article 10, and he sought a declaration of incompatibility. HHJ Lucraft KC, the Recorder of London, rejected his submissions.
The Court of Appeal
The Court of Appeal, in a judgment given by Baroness Carr CJ, dismissed both appeals ([2024] EWCA Crim 1597). It certified the question whether section 12(1A) represents a disproportionate interference with article 10 and, if so, whether it can be read down. Permission to appeal was refused on a second certified question concerning the mental element. The Supreme Court nevertheless addressed that point in analysing the ingredients of the offence. The Secretary of State for the Home Department intervened.
The issues
- What are the ingredients of the offence under section 12(1A), including whether knowledge of proscription is required?
- Is section 12(1A) sufficiently clear to be
prescribed by law
within article 10(2)? - Do the ingredients of the offence strike a fair balance, so that a conviction on proof of all elements is proportionate? Or must a further, freestanding proportionality assessment be carried out, by the jury, in each case?
Legislative context
Lord Reed, with whom the other members of the court agreed, traced the provision’s origins to R v Choudary [2016] EWCA Crim 1436. That case established that section 12(1) (inviting support) did not cover merely expressing support for a proscribed organisation. The 2019 Act was enacted against a heightened terrorist threat to fill that perceived gap. Parliamentary scrutiny included evidence from the Metropolitan Police’s senior national coordinator for counter-terrorism, who identified radicalisation as the biggest problem in counter-terrorism
, and from the Joint Committee on Human Rights. The court also noted the Independent Reviewer’s later reports and the continuing threat, including the Heaton Park synagogue and Bondi Beach attacks.
Lord Reed stressed at the outset that the indictments’ short description of the offence was misleading:
The offence is not committed by “expressing support for a proscribed organisation”. An offence is committed only if a person expresses such support and “in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation”.
The Court’s reasoning
Ingredients of the offence
Support for the organisation, not its aims. The court endorsed the Lady Chief Justice’s distinction between supporting an organisation and sharing its objectives:
To express an opinion or belief that is shared by the organisation is not the same thing as to express an opinion or belief that is supportive of the organisation.
A person can express support for Palestinian statehood without expressing support for Hamas. Drawing on Choudary, support
includes intellectual support, meaning approval or endorsement. No express reference to the organisation is required, because a sufficiently clear reference may be made by implication. Whether an expression is supportive is judged objectively, by how the words would naturally and reasonably have been understood in context. The court gave an example:
a responsible discussion of the conflict in Gaza, which sought to place the events of 7 October 2023 in the context of the history of Israel’s treatment of the Palestinians, would not constitute the expression of an opinion which was supportive of Hamas, even if it tended to make their actions more understandable.
Knowledge. Applying Sweet v Parsley and Pwr v DPP [2022] UKSC 2, the court held that the defendant must know that the opinion expressed is supportive of the organisation. Lord Reed applied this to the first appellant: if she did not know that her words would naturally and reasonably be understood as referring to Hamas, she would not be guilty even if her words were so understood.
No knowledge of proscription required. The first appellant’s contention was rejected. Proscription is a matter of law, and ignorance of the law is no defence. Requiring proof of such knowledge would render the provision virtually unworkable
. Nor did this impose a disproportionate burden on freedom of expression, because It is easy for anyone to find out whether an organisation is proscribed.
Recklessness. The word directed
imports intention. On that basis, the first appellant could not be taken to have directed her remarks to people who viewed the Daily Mail’s recording. Recklessness bears its R v G meaning: the defendant must be aware of a risk that the result will occur, and it must be objectively unreasonable to take that risk in the circumstances known to the defendant. The court considered the Joint Committee’s example of an academic seminar on de-proscription. It found it difficult to imagine a more than minimal risk of encouragement in that setting.
The court summarised seven ingredients (para 82):
- The defendant expressed an opinion or belief.
- The opinion or belief was objectively supportive of an organisation.
- The defendant knew he or she was expressing an opinion or belief supportive of it.
- The organisation was proscribed at the time.
- There was a risk that a person to whom the expression was directed would be encouraged to support it.
- The defendant knew of that risk.
- It was objectively unreasonable for the defendant to take that risk in the circumstances known to him or her.
Prescribed by law
Lord Reed accepted that When framing restrictions on freedom of expression, precision matters.
Relying on Strasbourg authority recognising the inevitability of judicial interpretation, however, he held:
There is nothing obscure about the meaning of the words “expresses an opinion or belief that is supportive of a proscribed organisation”, or about the meaning of the words “reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation”.
He compared provisions accepted by the European court, including the French offence of apologie du terrorisme
. He concluded that section 12(1A) presents no greater difficulty of definition than those provisions.
Legitimate aim
The provision pursues the protection of national security and public safety, the prevention of disorder or crime, and the protection of the rights of others. Relying on Internationale Humanitäre Hilfsorganisation eV v Germany, the court held that preventing terrorism abroad is also a legitimate aim. Any suggestion that speech supporting organisations active only outside the United Kingdom deserves greater protection was therefore rejected.
Necessity and proportionality
The court acknowledged that content-based restrictions on political speech require a compelling justification
. It found a pressing social need, given the growing tendency for attacks to be carried out by individuals encouraged or inspired by material they have read or heard. Considerable weight was given to the parliamentary process:
Deciding where and how to balance the value of freedom of expression against the need to combat terrorism is a highly sensitive matter falling primarily within the responsibility of the elected national authorities.
The first appellant argued that it was disproportionate for the offence to apply to the whole of Hamas. The court rejected this. Relevant and sufficient reasons had been given to Parliament for proscribing the entire organisation, and states enjoy a wide margin of appreciation in this area. The court also noted that the European court and the Court of Justice of the European Union had accepted the listing of Hamas as a whole.
Reviewing Zana v Turkey, Hogefeld v Germany, Leroy v France and Taşdemir v Turkey, Lord Reed observed that Strasbourg has focused primarily on the objective meaning and potential consequences of statements in context, rather than on intention. Section 12(1A) goes further, because it also requires culpable states of mind. Knowingly expressing support for a terrorist organisation may be regarded as the essence of an apology for terrorism
. The recklessness requirement ensures that expressions of support which carry no such risk will not constitute offences
. The court therefore concluded that, where all the elements are established, the interference is in principle justifiable. It added two qualifications.
The first qualification concerns the judge’s gatekeeping role at the close of the prosecution case:
In view of the importance of freedom of expression, and the risk that an overly broad application of section 12(1A) might discourage legitimate public debate, judges should be robust in exercising that power.
The court identified issues for the trial judges to consider:
- For ABJ: whether she objectively and knowingly supported Hamas, whom she never mentioned.
- For BDN: whether there was a more than minimal risk that tourists and passers-by at Downing Street would be encouraged to support Hamas.
The second qualification is that the judge must ensure that any sentence imposed is proportionate.
No freestanding proportionality assessment
The court rejected the contention that a separate proportionality assessment is required in each case. Proportionality had already been assessed by the Government, by Parliament after wide consultation, and by the courts in these proceedings:
There is no need for any further assessment by a trial court, and no basis in section 12(1A) on which such an assessment might be carried out in any event.
The court therefore found it unnecessary to decide whether any such assessment would fall to the jury. It nonetheless observed that the submission was not, however, an immediately attractive one
, because Convention compatibility is a question of law. The remedial tools (section 3 interpretation, section 6(2) of the Human Rights Act, or a stay of proceedings) are not functions that would normally fall to a jury.
Practical significance
- The judgment provides an authoritative seven-element formulation of the section 12(1A) offence for directing juries.
- It confirms that knowledge of proscription is not required, but that knowledge of the supportive character of the expression is.
- It places section 12(1A) alongside sections 12(1) and 13(1) as offences whose ingredients themselves secure article 10 compatibility, following the approach in Safe Access Zones.
- It reinforces the line between supporting a cause, such as Palestinian statehood, and supporting a proscribed organisation.
- It emphasises that protection for legitimate protest and debate lies chiefly in the robust use of submissions of no case to answer and in proportionate sentencing, rather than in case-by-case proportionality review by juries.
Verdict: The Supreme Court (Lord Reed, with whom Lord Sales, Lord Lloyd-Jones, Lord Burrows and Lord Richards agreed) answered the certified question in the negative. Section 12(1A) of the Terrorism Act 2000 is not incompatible with article 10, and no separate proportionality assessment is required where all ingredients of the offence are proved. Both appeals were dismissed and the cases were remitted to the Crown Court.
Source: R v ABJ; R v BDN [2026] UKSC 8
