R v ABJ (Appellant); R v BDN (Appellant) [2026] UKSC 8

Two appellants were charged under section 12(1A) of the Terrorism Act 2000 for expressing opinions supportive of Hamas following the 7 October 2023 attacks. The Supreme Court clarified the ingredients of the offence and held that it is compatible with Article 10 ECHR, dismissing the appeals.

Facts

The first appellant (ABJ), a young woman with no previous convictions, gave a four-minute speech at a Palestine Solidarity Campaign event in Brighton on 8 October 2023, the day after the Hamas attacks on Israel. In her speech, she described the events as ‘a victory’ and referred to ‘freedom fighters’ and ‘acts of resistance’, though she never explicitly mentioned Hamas. She was arrested after edited footage was published by the Daily Mail.

The second appellant (BDN) stood outside Downing Street on 17 October 2023, holding a placard quoting statements about Hamas by Avi Shlaim and Tony Blair, and using a megaphone to declare his support for ‘armed physical force resistance in Palestine’. He was arrested later that day.

Both appellants were charged under section 12(1A) of the Terrorism Act 2000 with expressing opinions supportive of Hamas, a proscribed organisation, whilst being reckless as to whether persons to whom the expression was directed would be encouraged to support Hamas.

Issues

Certified Question

The Court of Appeal certified the following point of law:

“Do the terms of section 12(1A) Terrorism Act 2000 represent a disproportionate interference with the appellant’s rights under article 10 of the European Convention on Human Rights (ECHR)? In the event that they do, is it possible to read down the terms of the offence to render them compatible?”

Key Issues

1. What are the ingredients of the offence under section 12(1A)?

2. Is section 12(1A) compatible with Article 10 ECHR, specifically: (a) whether the offence is sufficiently certain to be ‘prescribed by law’; (b) whether a conviction is a proportionate interference with freedom of expression; and (c) whether a separate proportionality assessment must be conducted by the jury?

Judgment

Ingredients of the Offence

Lord Reed, delivering the unanimous judgment, set out the seven ingredients of the offence at paragraph 82:

“(1) The defendant must have expressed an opinion or belief. (2) The opinion or belief must be objectively supportive of an organisation… (3) The defendant must have known that he or she was expressing an opinion or belief which was supportive of the organisation. (4) The opinion or belief must have been expressed at a time when the organisation was proscribed. (5) There must have been a risk that a person to whom the defendant’s expression of opinion or belief was directed would be encouraged to support that organisation. (6) The defendant must have known of that risk. (7) It must have been objectively unreasonable for the defendant to take that risk, in the circumstances known to him or her.”

Distinction Between Supporting Aims and Supporting the Organisation

The Court emphasised an important distinction at paragraph 60:

“The expression must be of an opinion or belief that is supportive of the ‘organisation’. 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.”

Prescribed by Law

The Court rejected the argument that section 12(1A) was too vague, stating at paragraph 96:

“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’.”

Proportionality and Necessity

The Court held that where all elements of the offence are proved, the interference with Article 10 rights is in principle justified. Lord Reed stated at paragraph 129:

“Viewed against the background of the foregoing analysis of the European case law, it is reasonable to conclude that, where all the elements of an offence under section 12(1A) are established, as set out in para 82 above, the interference with freedom of expression is in principle justifiable.”

No Separate Proportionality Assessment by Jury

The Court rejected the submission that a separate proportionality assessment must be conducted by the jury, explaining at paragraph 137:

“Where national authorities decide that a criminal measure interfering with a Convention right is necessary in order to meet a pressing social need, the government proposes the legislation, and seeks to persuade the legislature that it is justified… The performance of that function does not require the criminal courts to undertake a further review of the justification for the interference in the event that the provision is found to be applicable on the facts of an individual case: that question has already been examined, and the justification has been established.”

Role of the Trial Judge

The Court emphasised the judge’s responsibility at paragraph 131:

“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.”

Implications

This judgment provides authoritative guidance on the interpretation and application of section 12(1A) of the Terrorism Act 2000. It confirms that the offence requires proof of both knowledge and recklessness regarding the encouragement of support for a proscribed organisation, not merely the expression of political opinions shared with such organisations. The judgment also clarifies that knowledge of proscription is not required, as it is a matter of law.

The decision reinforces that states enjoy a wide margin of appreciation in counter-terrorism matters, and that legislation carefully scrutinised by Parliament will generally satisfy Convention requirements. However, trial judges must be vigilant in ensuring that prosecutions are only pursued where all elements of the offence can be proved, protecting legitimate political debate and freedom of expression.

Verdict: Appeals dismissed. The certified question was answered in the negative. The cases were remitted to the Crown Court for trial. Section 12(1A) of the Terrorism Act 2000 was held to be compatible with Article 10 ECHR, and no separate proportionality assessment by the jury is required.

Source: R v ABJ (Appellant); R v BDN (Appellant) [2026] UKSC 8