Choudary & Anor v R

Neutral Citation Number: [2017] EWCA Crim 1606 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CENTRAL CRIMINAL COURT MR JUSTICE HOLROYDE T20150301 Case No: 201604110 C5 201604111 C5 Royal Courts of Justice Strand, London, WC2A 2LL Date: 19/10/2017 Before : LADY JUSTICE SHARP DBE MR JUSTICE KING and HIS HONOUR JUDGE WALL QC (Sitting as a Judge of the Court of Appeal Criminal Division) - - - - - - - - - - - - - - - - - - - - - Between : Anjem Choudary Mohammed Mizanur Rahman - and - REGINA - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Applicants Respondent Mr Mark Summers QC and Ms Kate O’Raghallaigh (1st Applicant) and Mr Jo Sidhu QC and Ms Sultana Tafadar (2nd Applicant) (instructed by Ahmed & Co Solicitors) for the Appellants Mr Richard Whittam QC, Ms Alison Morgan and Mr Ben Lloyd (instructed by The Crown) for the Respondent Hearing dates: 12th October 2017 - - - - - - - - - - - - - - - - - - - - - Judgment LADY JUSTICE SHARP: 1. 2. On 28 July 2016, the applicants, Anjem Choudary and Mohammed Mizanur Rahman were convicted at the Central Criminal Court after a trial before Holroyde J, as he then was, and a jury on separate counts of inviting support for a proscribed organisation contrary to section 12(1) of the Terrorism Act 2000 (the 2000 Act). On 6 September 2016 the applicants were each sentenced to 5 ½ years’ imprisonment. They now renew their applications for permission to appeal against conviction after refusal by the single judge (Openshaw J). Choudary’s application for permission to appeal against sentence was refused by the single judge, and has not been renewed. 3. At the end of the hearing, we refused the applications, and now give our reasons. Background 4. 5. Choudary was charged with an offence contrary to section 12 of the 2000 Act (Count 1). The particulars were that between 29 June 2014 and 6 March 2015, he invited support for a proscribed organisation, namely the Islamic State of Iraq and Levant (ISIS, also known as Islamic State or IS) in breach of section 12(1)(a) of the 2000 Act. Count 2 charged Rahman with a similar offence, in identical terms. ISIL had been proscribed on 20 June 2014: see SI 2014/1624. On 14 January 2016 Holroyde J made a ruling at a preparatory hearing at the Central Criminal Court held in accordance with s29 (1B) of the Criminal and Investigations Act 1996. The judge was invited by the defendants to rule on the legal ingredients of the offence contrary to section 12(1)(a) of the 2000 Act. 6. That section, which is headed “Support” provides that: “12(1)(a) A person commits an offence if – (a) he invites support for a proscribed organisation, and (b) the support is not, or is not restricted to, the provision of money or other property (with the meaning of section 15).” 7. It was common ground before the judge at the preparatory hearing, that holding views supportive of a proscribed organisation was not conduct falling within section 12(1) (a) nor was expressing intellectual or moral support for a proscribed organisation (unless that consisted of the wearing of uniforms etc of such an organisation, conduct caught by section 13 of the 2000 Act). It was also common ground that the prosecution were required to prove that a defendant knew that he was inviting support for an organisation that was proscribed, but that there was no requirement to prove specific intent. The particular issue in dispute was the meaning of the words “inviting support”. 8. In summary the judge ruled that the prosecution were required to prove that: i) The organisation in question was a proscribed organisation within the meaning of the 2000 Act; ii) iii) A defendant used words which in fact invited support for that proscribed organisation; The defendant knew at the time he did so he was inviting support for a proscribed organisation. 9. On the meaning of “inviting support”, the judge decided that those words should be given their normal and ordinary meaning. The support required for the purposes of the actus reus of the offence was not restricted to support that takes some practical or tangible form. He also held that there must be proof that the defendant invited support for a proscribed organisation. He distinguished this from the mere expression of personal beliefs or personal approval of the proscribed organisation, and from inviting another to share such an opinion or belief, conduct which did not fall within the actus reus of the offence. Whether the words used by a particular defendant did or did not amount to an invitation of support for a proscribed organisation was a matter of fact for the jury to determine. 10. In relation to arguments raised under article 10 of the European Convention on Human Rights (the Convention), the judge said: “Parliament is in my view entitled to take the view that it is necessary that those who do favour and support a prohibited organisation should be prohibited from inviting others to join in that support, whatever form the support may take for the simple reason that – from the point of view of the proscribed organisation – the more support it can attract, the better. It may well be that s12 (1)(a) does engage both Art 9 and Art 10. But to the extent to which it does so, I am satisfied that any interference with either or both of those rights is a proportionate interference in response to a legitimate need.” 11. The judge gave the applicants permission to appeal his ruling. At the appeal to this Court, a number of arguments were advanced on behalf of the applicants. For present purposes it is only necessary to outline one of them. In an argument made in much more detail to the Court of Appeal, than it had been below, it was submitted that the judge’s broader interpretation of “inviting support” was incompatible with articles 9 and 10 of the Convention; and that the criminalisation of speech inviting support for a proscribed organisation was disproportionate unless the speech advocated or encouraged violence. In a judgment handed down on 22 March 2016, the Court of Appeal (Sharp LJ, William Davis J and the Recorder of Manchester) dismissed the appeals: see R v Choudary and Rahman [2016] EWCA Crim. 61; [2017] 3 All E. R. 459. In summary it was held that the judge’s construction of section 12(1)(a) and the legal ingredients of the offence, and in relation to the Convention, were correct. In relation to the Convention arguments raised, the Court said as follows: “66 …We certainly accept that a prosecution for an offence contrary to section 12(1) of the 2000 Act engages article 10 of the Convention, to the extent that it limits the right of an individual to express himself in a way that amounts to an invitation of support for a proscribed organisation. We also accept that article 10 is engaged on the facts of this case. 67 However, the right to freedom of expression is not absolute. Interference with that right may be justified, if it is prescribed by law, has one or more of the legitimate aims specified in article 10(2), is necessary in a democratic society for achieving such an aim or aims (where necessity implies the existence of a pressing social need) and is proportionate to the legitimate aim or aims pursued. 68 The starting point in relation to an offence under section 12 is the fact of proscription. In other words, section 12, like sections 11 and 13, is concerned with activities associated with an organisation that has already been proscribed in accordance with the process laid down in the legislation, following a determination by the Secretary of State that it is concerned with terrorism, as defined. The terms of section 12(1)(a) itself are clear: see paras 50 to 52 above, and in our view the requirement that the interference must be prescribed by law is met. Further, section 12(1)(a), like section 11. is a measure that is clearly directed to a number of legitimate ends: preserving national security, public safety, the prevention of disorder and crime and the rights and freedoms of others. 69 The appellants do not argue that a prosecution for inviting practical or tangible support for a proscribed organisation would infringe the rights protected by the Convention. However the broader support which the section is aimed at, is very valuable to such organisations for the reasons identified by the judge, and needless to say, it cannot be known how such invitations of support will be acted on. As Mr Whittam QC for the Crown submits, the offences in Part II of the 2000 Act are essential to the proscription process because they are the means by which proscription is put into effect. They enable the State to counter and attack such organisations, the influence they have on third parties and, ultimately, the threat that they pose to society. 70 When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(1)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified. 71 We take the same view in relation to article 9 of the Convention. No developed argument was made in relation to the engagement of article 9 on the facts. Though the appellants relied on the rights protected by article 9 of the Convention (to freedom of thought, conscience and religion) the sole point taken was that article 9(2) in contrast to article 10(2), does not permit the rights protected by article 9(1) to be restricted in the interests of national security. However, we do not think this adds anything of substance to this appeal. The permissible restrictions in article 9(2) include the protection of public order, and the protection of the rights and freedoms of others, which are amongst the legitimate ends at which section 12(1) is directed, as we have already said.” 12. The Court of Appeal certified two questions of law for the Supreme Court. i) ii) Where a defendant is tried for an offence of inviting support for a proscribed organisation contrary to section 12(1) of the Terrorism Act 2000, is it necessary for the prosecution to prove that the defendant invited others to join him in providing practical support to a proscribed organisation; If the proper interpretation of the words “inviting support” does not require any invitation to others to join the defendant in providing practical support, is section 12(1) of the Terrorism Act compatible with Articles 9 and 10 of the European Convention on Human Rights? 13. On 7 June 2016, the Appellate committee of the Supreme Court refused leave to appeal on the grounds that the applications did not raise an arguable point of law. The Trial 14. The trial began on 27 June 2016. The case for the prosecution was essentially that outlined to the Court of Appeal at the appeal against the preparatory ruling, as was the case for each applicant: see paras 11 to 17 of R v Choudary and Rahman. It was, in summary, that the applicants invited support for ISIS after it was proscribed, principally in four talks – two given by each applicant posted on the internet in September and November 2014, and in an Oath of Allegiance posted on the internet on 7 July 2014, in their respective Islamic names. In that Oath of Allegiance, they declared their allegiance to a Caliphate (otherwise referred to as a khilafa) or Islamic State declared by ISIS on 29 June 2014 and to its leader or Caliph, Abu Bakr al Baghdadi. It was the prosecution case that in their talks etc, the applicants sought to validate the legitimacy of the Caliphate and the Caliph and to emphasise the obligation on others to obey or provide support to Al Baghdadi. One of the obligations was to travel (or make hijra) to the Islamic State. It was accepted that the talks did not contain explicit invitations to violence. But the talks were said to be invitations of general support for the Islamic State declared by ISIS, and did not limit themselves as to the manner in which support could be given. 15. The prosecution said this was not a marginal case nor was it accepted that the talks were abstract talks about the concept of the Caliphate. It was said that the Caliphate the applicants talked about was that declared by ISIS, and the talks were a 16. 17. justification for the Islamic State declared by Al Baghdadi in terms which amounted to an invitation of support for ISIS. Part of the evidence put before the jury was the applicants’ open support (as the prosecution alleged it to be) of ISIS before proscription. The prosecution alleged that the applicants were both experienced speakers, perceived by others as leaders. They had a large following on social media, and had made many public statements supporting ISIS on their social media accounts. They had also attended a protest at which banners of support for ISIS were displayed. It was said the applicants were fully aware of the need for care as to the manner in which public statements of support for ISIS were delivered given the fact of proscription, but the talks were deliberately designed to invite support for ISIS without going so far as to encourage terrorism, or engage in terrorism (discrete offences under the terrorist legislation) and in this respect they chose their words with particular care. There was no dispute that the talks had been given. The defence case in summary was that they were not invitations of support for ISIS, nor were they intended to be. Choudary for example said (in his Defence Statement) that the talks he gave were assessing the implementation of the issues surrounding the implementation of the Islamic State or Caliphate system in the Middle East; and/or if the talks were found to have invited support for ISIS within the meaning of section 12 of the 2000 Act, he did not do so intentionally. It is to be noted in passing that each defendant (as the judge was to record) gave evidence to the effect that they were aware of the offence of inviting support for a proscribed organisation and did not at any time invite such support. 18. On 19 July 2016, at the close of the evidence, the judge gave a ruling on submissions made by the applicants as to the terms in which the jury should be directed. In relation to the way the Crown put its case, the judge said: 3. The principal evidence relied on by the prosecution against each defendant is (a) the content of certain lectures which each of them gave (in particular the lectures which are transcribed in the jury bundle at dividers 11 and 12 in the case of Mr Choudary, and at dividers 13 and 14 in the case of Mr Rahman; (b) in Mr Rahman’s case, the contents of an exchange of messages between him and Omar Ali Hussain, a man then fighting for ISIS in Syria; and (c) the terms of a document referred to as the oath of allegiance to which it is alleged that both defendants were knowing signatories. 19. He went on to say: “4. Counsel realistically accept, in relation to each of the defendants, that if the jury are sure that a defendant was a knowing signatory to the oath of allegiance document (and thus reject his evidence that his name was added, without his knowledge or permission, to a document of which he was unaware), then they would be entitled to convict him on that basis alone, and such a conviction would not involve any infringement of his Art 10 rights. It is also accepted that the jury are entitled to consider the totality of the evidence against each defendant, and to assess the meaning of his lectures in the light of the evidence as a whole.” 20. 21. 22. 23. The submission for the applicants at that stage was that the jury should be directed that they could not convict either defendant solely on the basis of one or both of his lectures, and if they were unsure that a defendant was a party to the Oath of Allegiance they would be bound to acquit him. Two broad arguments were made in support of that submission. First, on the sufficiency of the evidence, having regard to the content of the talks; and secondly, in the alternative, it was said that to permit a conviction on the talks alone would be an infringement of the applicants’ article 10 right to freedom of expression. The judge rejected both submissions. Though he acknowledged that the case for the prosecution would be weakened if the jury were not sure that each applicant was a knowing party to the Oath of Allegiance, he said it was open to the jury in Choudary’s case to find the references by Choudary in a tweet were to ISIS, and that what Choudary said in the evidence relied on by the prosecution, amounted to an expression of his own support for ISIS and an invitation of support from others. Similar reasoning applied in Rahman’s case, with regard to the lectures and the exchange of messages with Omar Ali Hussain. In particular, the jury would be entitle to conclude that in one lecture, Rahman was inviting his audience to make hijrah to ISIS territory and was thereby inviting support for ISIS. As for the second submission, this was built on an observation made by the Appellate Committee of the Supreme Court, who added, after refusing leave to appeal: “If a question arises whether words used by the defendants (or either of them) were protected by Article 10, it will be a matter for the judge and/or the jury to consider after the evidence has been given.” 24. While the applicants accepted before the judge that they could not go behind the ruling of the Court of Appeal in R v Choudary and Rahman, it was argued that even if the lectures alone would be capable of amounting to a section 12 offence, what the Supreme Court said, made it necessary to assess whether on its facts, the prosecution was compliant with article 10 of the Convention. 25. 26. The judge rejected this argument. He said that he was bound by the decision of the Court of Appeal; and did not accept the Court of Appeal had merely dealt with the argument then made by the applicants that it was contrary to article 10 to criminalise an invitation to support a terrorist proscribed organisation, unless the invitation was to provide violent support. He went on to say that even if he was wrong in holding he was so bound, he would have reached the same conclusion for the same reasons he gave in ruling against the applicants at the preparatory hearing: see para 10 above. As for what was said by the Appellate Committee of the Supreme Court, the judge’s initial view was it meant no more than this: the question whether words which founded a prosecution were protected by article 10 or fell within the ambit of section 12, was an issue to be determined on the facts. The judge said however he was prepared to proceed on the basis that the Supreme Court contemplated a decision as to proportionality on a case-by-case basis. 27. We consider the judge’s initial view was the correct one. It is important to keep in mind that the Appellate Committee refused leave because no arguable point of law had been raised and that their observation was not a judgment. In any event, we consider the applicants’ submissions on this point, which they have repeated in support of this renewed application to us, are misconceived. In our judgment the position is clear. Where there is a prosecution under section 12(1) of the 2000 Act, it is for the judge to rule, if the issue is raised, whether the words are capable of amounting to an invitation to support within the meaning of section 12, as determined in R v Choudary and Rahman. If the judge decides the words are capable of amounting to an invitation to support, then, other things being equal, the case must be left to the jury to decide as a matter of fact, whether a defendant did invite support. We would emphasise that consistent with the Court of Appeal’s ruling, there is no room, or jurisdiction, to be more precise, for a judge to decide that although there is sufficient evidence on which a jury, properly directed, could convict of an offence contrary to section 12(1)(a), the prosecution should be halted, because on the judge’s assessment of the facts, a conviction would be a disproportionate interference with a defendant’s right to freedom of expression. This would be to go behind the decision of the Court of Appeal. 28. 29. The flaw in the applicants’ argument is illustrated by what the judge went on to say. This was that if he was to follow the applicants’ line of reasoning on this issue, counsel were unable to assist with how precisely he might resolve the question in the defendants’ favour in circumstances where there was evidence from which a jury could properly find that a defendant went beyond mere expressions of belief and opinions, and invited support for a criminal organisation which Parliament had proscribed because it has felt it necessary to do so in order to protect the public. He found it difficult to envisage any circumstances save those that were de minimis where a prosecution in such circumstances would be disproportionate. We would add that Counsel had precisely the same difficulty in assisting us on this point as they had before the judge. For the avoidance of doubt however, and in case he was wrong in concluding that he was bound by the decision of the Court of Appeal, the judge went on to say that it would not be right to withdraw the issue from the jury on the ground that a conviction, unless based at least in part on the oath of allegiance, would be a disproportionate interference with the defendants’ article 10 rights, giving these reasons: “40. If I am wrong about that as a matter of generality, then I have no doubt that in the particular circumstances of this case the defendants’ submissions must fail. There is in my judgment evidence on which the jury could properly find that by their lectures alone, the defendants went beyond an expression of their beliefs and opinions and knowingly invited support for the proscribed organisation ISIL. They did so at a time when … that terrorist organisation was seeking to expand its territory by violence, and regarded itself as being at war with anyone who did not share its views. Both defendants have deliberately courted publicity for their statements. Their public pronouncements have been numerous and have been aimed at large audiences. If the jury are sure that they were knowingly inviting support for the proscribed organisation ISIL, they were inviting it from a large audience, many of whom could be expected to be receptive to the defendants’ words and influenced by them. They were doing it repeatedly, so that there can be no question of an isolated and venial straying across the line. This is certainly not a case in which any infringement of the law could be said to be de minimis. I am unable to accept the submission that I should nonetheless withdraw the issue from the jury on the ground that conviction – unless based at least in part on the oath of allegiance – would be a disproportionate interference with the defendants’ Art 10 rights.” 30. In the event, the judge gave the jury the following written directions of law, amongst others, which he read to them at the beginning of his summing up: “13. The offences charged: Each of the defendants is charged with an offence under section 12 of the Terrorism Act 2000. Under that section, a person commits an offence if he invites support for a proscribed organisation. A proscribed organisation is an organisation which the Home Secretary has proscribed (that is, banned), because it is believed to be concerned in terrorism. Each of the defendants denies that he is guilty. 14. It is important to emphasise that section 12 of the Terrorism Act does not make it an offence to hold opinions or beliefs which are also held by members of a proscribed organisation. Nor does it make it an offence to express those views to other people. If after hearing all the evidence you are not sure that a defendant did anything more than express his opinions or beliefs, your verdict in his case must be Not Guilty. 15. Before you could convict a defendant, the prosecution would have to make you sure of the following legal ingredients of the offence: a. That during the period covered by the charge, ISIL was proscribed organisation. There is no issue about this, because on 20th June 2014 the Home Secretary proscribed (banned) the organisation known as Islamic State of Iraq and Levant (commonly referred to as ISIL and also known, amongst another names, as ISIS and DAISH). So you can be sure throughout the period covered by the charges, ISIL was a proscribed organisation. AND b. That the defendant whose case you are considering used words which in fact invited support for the proscribed organisation ISIL and knew at the time that he did so that he was inviting support for the proscribed organisation ISIL. Each of the defendants denies that he did this, and so this will be an issue on which you will need to focus. In law, it does not matter whether he invited support by spoken words or by written words or by a combination of the two. Nor does it matter what form of support he invited, provided that he did not only invite the provision of money or other property. (To explain: the reason for that exception is that there is a different section of the Act which makes it an offence to engage in fundraising activities for a proscribed organisation. It is not alleged that either of the defendants was engaged in fundraising.) 16. Now that you have heard all the evidence, I need to add a little to the direction which I have set out in paras 13 – 15 above, and in particular to add to para 14 to cover all the points which you need to have in mind. In this country, everyone is free to have religious beliefs and to practice his or her religion. Everyone is entitled to his or her personal opinions, even if they are opinions which many others find unpalatable or offensive. Everyone is free to express his or her opinions and religious beliefs publicly, even if others don’t like to hear or read them, and free to invite others to share those opinions and beliefs. Those rights to freedom of thought, religion and speech are of course very important. But the right to freedom of speech is not absolute, and Parliament has drawn a line. It is against the law to invite support for a proscribed organisation. The reason for that is obvious: a proscribed organisation is an organisation which is concerned in terrorism. It is an organisation which seeks to achieve its aims by the use of serious violence and/or serious damage to property. The more support a proscribed organisation has, the stronger and more dangerous it will be. So the law makes it an offence to invite support for a proscribed organisation. 17. The defendants in their evidence have made it clear that they are well aware of that line. Each of them says that he has not crossed it. Each of them says he has not invited support for ISIL, or for any other organisation, because his focus is always on religious principle rather than on any organisation. 18. When considering your verdicts, you will need to consider two situations. On the one hand, there is a religious belief in the khilafa, an Islamic state established and governed in accordance with the principles of sharia law. It is not an offence to wish for such a state to be established, and to believe that it is an ideal from a Muslim perspective. It is not an offence to invite others to share in such a belief. The defendants say they never did anything more than that. If that is or may be the truth, then they are not guilty of the offence charged. But on the other hand, you have the proscribed organisation ISIL which on 29th June 2014 declared the establishment of a khilafa in parts of Syria and Iraq. The prosecution allege that the reality of the defendants’ speeches and writings was that they were inviting others to support the terrorist organisation which …had achieved control of areas by military operations and regarded itself as being at war with anyone who did not share its views. If you are sure that is what a defendant did, then he is guilty of the offence of inviting support for a proscribed organisation. So the issue for you, in relation to each defendant separately, is whether the prosecution have made you sure that he has crossed the line which Parliament has drawn and has committed the offence… 20. The route to your verdicts: It follows that when you have considered all the evidence you will have to ask yourselves this question about each defendant separately: Are we sure that during the period covered by the indictment the defendant, in one or more of his speeches and/or writings, used words which in fact invited support for the proscribed organisation ISIL and knew at the time that he did so that he was inviting support for the proscribed organisation ISIL? If the answer is yes, your verdict in his case must be Guilty. If the answer is No, your verdict in his case must be Not Guilty.” 31. 32. 33. Against that background we turn to the Grounds of Appeal. As is evident from our refusal of the applications, we are not persuaded there is any arguable merit in the grounds of appeal, or that the convictions in this case are arguably unsafe. In large part the Grounds seem to us to be an attempt to go behind the ruling of law made by the Court of Appeal; or to persuade this Court to substitute its own assessment of the evidence for that of the jury, or to unpick, by reference to the odd phrase, an impeccable summing up about which neither applicant made any complaint at the time. The Grounds advanced on behalf of Choudary, are divided into three parts. Part 1: no section 12 offence (Grounds 1 to 3); Part 2, prosecution incompatible with the Convention (Ground 4); and Part 3 : the conduct of the trial (Grounds 6 and 7). Ground 5, which was that the jury were wrongly precluded from returning a verdict according to their conscience, is not renewed before us. At the beginning of the hearing Mr Summers told us that Ground 6 was no longer pursued. It remained relevant however he said to his argument under Ground 7, so we shall outline its terms. There is some overlap between Choudary’s grounds and those advanced on 34. 35. behalf of Rahman, and where it is convenient to do so, we will deal with them together. The grounds, in summary, and our views on them are these. Ground 1: Choudary. The judge was wrong to permit the jury to convict on the basis of the talks (described as lectures in the Grounds of Appeal) given by Choudary, since these merely “sought to assess from a religious perspective, the legitimacy or otherwise of the Caliphate declared by ISIS, and the offence under section 12, does not encompass mere objective assessment of the religious characteristics of a proscribed organisation.” 36. We start by noting that neither applicant put the talks themselves before us, only their analysis or description of them. Be that as it may, in our view this ground is not arguable. It merely invites this court to substitute its view of the facts for those of the jury. The jury saw the relevant material. Choudary’s case as to its meaning and his intentions were identified by him in his evidence, and no doubt, squarely argued on his behalf by Mr Summers. His case was moreover put very fairly before the jury in the summing up. In the end, it was a matter for the jury to assess whether the talks were merely, as the defence submitted, an objective assessment etc. as set out above, or were deliberately designed to invite others to support the proscribed terrorist organisation. In case it should be doubted, there was in our judgment, and as the judge found, sufficient evidence, indeed ample evidence, as the single judge said when refusing permission to appeal, to support the jury’s verdict: see in particular, the passages set out at paras 14-17 of Annex A to the Respondents’ Notice. 37. As part of this ground, it is briefly suggested that the judge was wrong to rule on the 19 July 2016, that the act of assessing the religious legitimacy of the Caliphate could amount in law to “support” for it. In our view, this is not an accurate description of what the judge said, as is clear when the sentence relied on to make this argument, highlighted below, is seen in context: “22. The prosecution case is that in the tweet of 2nd July 2014 to which I have referred, Mr Choudary was ascribing to ISIL the status of a legitimate khilafa and thereby both declared his own support for ISIL and invited support for ISIL from others. In support of their case the prosecution point to Mr Choudary’s acceptance in cross-examination that he has many followers and knows that people are interested in his views. In his first broad argument, Mr Summers contended first that the prosecution case involves a false equation: he submitted that on the evidence, ISIL and the khilafa could not be regarded by the jury as the same thing. Secondly, even if the jury could properly find them to be the same, and find that the defendant knew that when he accepted ISIL as a legitimate khilafa, the mere expression of his personal view as to the legitimacy cannot be “support” for ISIL. Thirdly, even it is capable of being an expression of his own support, it is not capable of being an invitation of support from others: in this regard, Mr Summers relied on the Court of Appeal’s judgment, paras 6 and 49, as showing that it is not enough for the defendant to invite others to share his view. He argued that the evidence shows that the defendant was doing no more than expressing his own view and telling his audience to make their own verifications and assessments. Even giving full weight to the defendant’s status in the Salafi Sunni Muslim community argued Mr Summers, that is not capable of being regarded as an invitation of support. On those grounds, Mr Summers, submitted that the contents of the two lectures, individually or jointly, could not provide a sufficient foundation for a conviction. 23. I am unable to accept that first broad argument in Mr Choudary’s case. I do not agree that the prosecution are asking the jury to draw a false equation. The khilafa was declared by a proscribed organisation which had achieved its position by the use of force and had then adopted the name Islamic State. It is open to the jury to find that references by the defendant to “the Islamic state” were in fact references to ISIL. The jury could also find that the lectures by the defendant amounted to an expression of his own support for ISIL and an invitation of support for ISIL from others. Accordingly, whilst the prosecution case against the defendant would not doubt be weakened if the jury were not sure that he was a knowing party to the oath of allegiance document, the jury would still be entitled to convict on the basis of what was said in the lectures.” 38. 39. 40. 41. Ground 1: Rahman. The judge was wrong to reject the submission made on behalf of Rahman that he should direct the jury that neither of two talks relied on against him (Hirja and Offers and Acceptance for Khilafah), went beyond an expression of his views about Sharia Law (expressions which could not in law amount to an offence); and thus to reject the submission that if the jury were unsure of the prosecution’s case against Rahman on the Oath of Allegiance, they should acquit. The meaning of these talks was a matter for the jury to assess; and we reject this Ground for similar reasons to those given in relation to Choudary: see para 36 above. Ground 2 Choudary: Ground 4: Rahman. The judge was wrong to direct the jury that a mere failure (or omission) to denounce a proscribed organisation could constitute “support” for that organisation under section 12 of the 2000 Act. The judge did not direct the jury that as a matter of law a mere omission or failure to denounce, could amount to an invitation to support contrary to section 12 of the 2000 Act as can be seen from the directions set out at para 30 above. This Ground is therefore based on an inaccurate description of the judge’s directions. 42. Mr Sidhu relies on part of the summing up, where the judge dealt with the evidence, relevant to the case made by the prosecution that the applicants personally supported ISIS; and to that made by the applicants, that they did not do so. In that context, the judge simply reminded the jury of evidence given by Rahman about an interview he had given concerning the attack on the Charlie Hebdo office, which he had refused to condemn; and indicated that a failure to do so could be evidence of an individual’s own support for the proscribed organisation. This was not a misdirection. It was open to the prosecution to rely on such evidence, and on other evidence (such as whether the applicants or either of them had sought to justify the actions of ‘Jihadi John’ for example) to prove they personally supported ISIS: see further, paras 47 to 51 below. Had the applicants been able to satisfy the jury that they did not personally support ISIS, this might have undermined the prosecution case that they invited support for ISIS from others. But the converse was also true. Evidence that they personally supported ISIS, was capable of supporting the prosecution case that they had knowingly invited others to others to support ISIS. In our view, the criticisms made of the judge’s summing up in this connection, are without substance. Ground 3: Choudary. If contrary to grounds 1 and 2, Choudary’s conduct amounted in law to expressions of support for the Caliphate declared by ISIS, the judge was wrong to hold that his talks included any invitation to others to support ISIS. While the talks invited others to share his opinion that the Caliphate was religiously legitimate, they did not instruct or enjoin them to do so. Rather they invited others to assess the characteristics of the Caliphate for themselves, and reach their own conclusions. They did not therefore “step over the line” between what was lawful (as identified by the judge in his preliminary ruling upheld by the Court of Appeal) and what was unlawful This argument is flawed for the same or similar reasons to those given in relation to Ground 1. It amounts to a reiteration of Choudary’s case on the facts. Whether what Choudary said did or did not “step over the line”, as Mr Summers puts it was the central issue for the jury to assess on the material before them; the jury were given impeccable directions on the ingredients of the offence, and of what they had to be sure, before they could convict. On the evidence it was open to the jury to find that what Choudary said contravened section 12(1)(a) of the 2000 Act. Ground 4: Choudary: Ground 5: Rahman. If, contrary to Grounds 1 to 3, Choudary’s conduct amounted in law to inviting support for the Caliphate declared by ISIS, on its facts, this prosecution nonetheless violated Articles 9 and 10 of the Convention (and sections 3 and 6 of the HRA 1998). The judge was wrong to rule otherwise. 43. 44. 45. 46. We have already considered the core of this argument at paras 23 to 28 above. In our view, this submission seeks to go behind the decision of the Court of Appeal correctly followed and applied by the judge. As we have already said, it is based on an erroneous analysis of the limits of the Court of Appeal’s decision. The Court of Appeal did not simply decide that section 12 may consistently with article 10 of the Convention, criminalise invitations of support for proscribed organisations, even if they do not incite or are not liable to incite violence. The Court of Appeal decided by reference to the judge’s broader interpretation of inviting support, that section 12 was compatible with articles 9 and 10 of the Convention: see further, R v Choudary and Rahman at paras 61 to 90 . The jury in this case were properly directed on the law. If the jury concluded that as a matter of fact the applicant whose case they were considering, had knowingly invited support for ISIS, then he was guilty of an offence contrary to section 12(1)(a) of the 2000 Act. There was no room in those 47. 48. circumstances for a freestanding argument that such a conviction was nonetheless incompatible with articles 9 or 10 of the Convention. Ground 6: Choudary. Ground 2: Rahman. It was originally submitted by both applicants that the judge was wrong to admit evidence said to be probative of their support for ISIS, before it was proscribed, and at a time when inviting support for ISIS was therefore lawful. The evidence was that referred to in a Timeline provided to the jury. As earlier indicated however, this argument is no longer pursued by Choudary. Indeed Mr Summers made it clear in his submissions that he fully accepts that material evidencing Choudary’s support for ISIS pre-dating proscription was logically probative of whether he invited support for ISIS at the material time. We think this concession was properly made. However, we identify the points made on behalf of Choudary under this Ground, as Mr Summers submits it is of some relevance to the complaint made on Choudary’s behalf under Ground 7. Under Ground 6, two examples were given of what were said to be particularly egregious examples of such evidence. First, a speech given by Choudary in 2013, in which he gave a lecture on the topic of the duties of the Caliphate state against a cloth backdrop saying “revolution”; and in which he spoke of offensive armed jihad and made statements such as “it is about time we resumed conquering”. Secondly, material relating to a demonstration attended by both applicants on 4 April 2014, at which placards with the initials ISIS on them were displayed. 49. Mr Sidhu maintains his submission for Rahman (albeit with not much force) that such pre-proscription material relating to Rahman, could not logically be probative of whether what he said later on, and using different language, was a knowing invitation to support. Mr Sidhu submits that such material was liable to confuse, distract or prejudice the jury because of its unpalatable nature, and should have been excluded by the judge. 50. 51. In his case, the material included various Facebook posts and text messages pre- proscription in 2013/4 “citing with approval when martyrdom operations are justified in November 2013”; calling for the Western World to recognise ISIS and agree terms of withdrawal from their land; cautioning against condemning ISIS; approving the fact that ISIS was the only organisation implementing Sharia law as a state; stating that if ISIS established Khilafah tomorrow will anyone refuse to give them bayah and die the death of jahiliyyah (11 June 2014); stating the establishment of ISIS will change international politics forever (14 June 2014); asking that Allah protects the mujahedeen and grants them victory (14 June 2014); reporting news that ISIS and JN have made a truce and declaring that victory is near; and a text message advising against open public support for ISIS. At a pre-trial hearing, the judge said that the jury would have to determine what type of activity the applicants were engaged in when they made the offending speeches. Were they engaged in legitimate debate or were they inviting support for a proscribed organisation? The jury would be entitled to draw inferences as to what the applicant said and did before and after the time at which they made the offending speeches. It would be artificial to suggest that nothing that was said or done before ISIS was proscribed was capable of being relevant. In our judgment the judge was correct to rule that this evidence was relevant and admissible, and we do not consider the contrary to be arguable. It was relevant to show the applicants’ view of the organisation and was capable of assisting the jury in deciding what the applicants were doing after ISIS was proscribed. It was, as the respondent put it, capable of showing that the applicants were overtly inviting support for ISIS before proscription, and that they continued to do so in more cautious terms after proscription. Having regard to the judge’s clear directions to the jury, and what he said about the material in question, we do not accept there was any scope for confusion on the part of the jury about why this material had been adduced or its potential relevance to their deliberations. Ground 7: Choudary: Ground 3: Rahman. On behalf of Choudary it is said that the judge was wrong to direct the jury that background evidence could itself found the (sole) basis for conviction. A similar submission is made on behalf of Rahman, where it said the judge misdirected the jury by suggesting they could rely on such background evidence as an alternative and further route to a guilty verdict. This material (described as non indictment material by Mr Summers and Mr Sidhu) consists of four speeches or talks by Choudary, one of which was given in March 2013, before ISIS was proscribed and eight talks given by Rahman, none of which it is said, amounted to an invitation to support ISIS. The applicants submit certain passages from the summing up left the jury with the erroneous impression that they could convict on the basis of the non indictment speeches alone if they concluded they amounted to an invitation to support ISIS, notwithstanding that the prosecution had not contended those non indictment speeches were unlawful; and that its case was founded only on the talks (or lectures) and the Oath of Allegiance. Further, insofar as the prosecution did seek to rely on this material, it is submitted the “goal posts” of the case had been moved. 52. 53. 54. 55. We are not persuaded that this point is arguable. It is right to say that the principal focus of the prosecution were the four talks (two for each applicant) and Oath of Allegiance referred to at para 14 above. However, the indictment, as the respondent points out did not particularise individual talks, and the suggestion there was a concession that this other material was lawful is not substantiated. That the nature of the material relied on by the prosecution included, but was not confined to those talks and the Oath of Allegiance can be seen from the judge’s ruling of 19 July: see paras 18 and 19 above. Furthermore, as we have said, the applicants raised no objection to the judge’s summing up at any point whilst it was being delivered or before the jury retired. This is not because their highly experienced legal teams missed an obvious point; but because the summing up contained correct directions of the law, and a fair and accurate summary of the case presented by each side. The issue for the jury was whether the applicants invited support for the ISIS during the indictment period. The jury were directed to address this issue for each applicant, by reference to one or more of his speeches and writings; and there was no error in judge’s approach to these issues. As the single judge put it in refusing leave to each applicant, on these particular grounds of appeal: “The prosecution had highlighted various speeches and material but the indictment did not specify, and the prosecution was not limited just to the two speeches identified and the oath of allegiance: there was much other material from which the jury could have inferred the applicants’ support for ISIL. Indeed the defence were keen that what the applicant had said in in those two speeches was considered in the context of many other utterances made by the applicant. The question for the jury was whether taken together, the jury could be sure that he had invited support for ISIL. The judge’s ruling was right and his directions were clear; there was abundant evidence from which the jury could conclude that the case was made out.” 56. It follows that in agreement with the single judge, on this as on the other grounds advanced, neither applicant has an arguable ground of appeal, their convictions are not arguably unsafe and these renewed applications for permission to appeal are refused.