R v Z (Attorney General for Northern Ireland's Reference)
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD CARSWELL,LORD RODGER OF EARLSFERRY,LORD BINGHAM OF CORNHILL |
| Judgment Date | 19 May 2005 |
| Neutral Citation | [2005] UKHL 35 |
| Date | 19 May 2005 |
| Court | House of Lords |
[2005] UKHL 35
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Woolf
Lord Rodger of Earlsferry
Lord Carswell
Lord Brown of Eaton-under-Heywood
(On Appeal from the Court of Appeal in Northern Ireland) (Northern Ireland)
My Lords,
In an indictment dated 11 June 2003, four defendants were charged (among other counts) with belonging "to a proscribed organisation, namely the Real Irish Republican Army", contrary to section 11(1) of the Terrorism Act 2000. They objected that the Real Irish Republican Army (to which I shall for convenience refer as "the Real IRA") was not a proscribed organisation within the meaning of section 11(1). Girvan J, sitting in the Crown Court at Belfast, upheld the objection for reasons given in a judgment delivered on 25 May 2004 and acquitted the defendants on those counts. The acquittals prompted the Attorney General for Northern Ireland to refer the following point of law for the opinion of the Court of Appeal in Northern Ireland under section 15 of the Criminal Appeal (Northern Ireland) Act 1980:
"Does a person commit an offence contrary to section 11(1) of the Terrorism Act 2000 if he belongs or professes to belong to the Real Irish Republican Army?"
The Court of Appeal (Kerr LCJ, Nicholson and Campbell LJJ), for reasons given by the Lord Chief Justice in a judgment of 30 June 2004, differed from the judge and answered that question in the affirmative. In this appeal, the acquitted person (anonymised as Z) contends that the question should be answered negatively.
The statutory provision most directly in issue in the appeal is section 3 of the Terrorism Act 2000, which provides:
"3 Proscription
(1) For the purposes of this Act an organisation is proscribed if—
(a) it is listed in Schedule 2, or
(b) it operates under the same name as an organisation listed in that Schedule.
(2) Subsection (1)(b) shall not apply in relation to an organisation listed in Schedule 2 if its entry is the subject of a note in that Schedule.
(3) The Secretary of State may by order—
(a) add an organisation to Schedule 2;
(b) remove an organisation from that Schedule;
(c) amend that Schedule in some other way.
(4) The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism.
(5) For the purposes of subsection (4) an organisation is concerned in terrorism if it—
(a) commits or participates in acts of terrorism,
(b) prepares for terrorism,
(c) promotes or encourages terrorism, or
(d) is otherwise concerned in terrorism."
Section 11 creates the offence of belonging or professing to belong to a proscribed organisation. Other sections create other offences related to proscribed organisations. In section 121 "organisation" is defined to include "any association or combination of persons". Schedule 2 to the Act, entitled "Proscribed organisations", lists a number of such organisations, of which the first 14 have an Irish or Northern Irish provenance. First on the list is "The Irish Republican Army" (henceforward, for convenience, "the IRA"). One of these listed organisations, the Orange Volunteers, is the subject of a note in the Schedule:
"The entry for The Orange Volunteers refers to the organisation which uses that name and in the name of which a statement described as a press release was published on 14 October 1998."
The IRA entry is not the subject of any note. The Real IRA is not, as such, listed. Hence the simple submission made for the acquitted person that the Real IRA is not a proscribed organisation for purposes of the 2000 Act.
The proscription of organisations dedicated to politically-motivated violence is not a novelty in Ireland. A scheme for proclaiming associations to be dangerous was established by the Criminal Law and Procedure (Ireland) Act 1887, and in 1918 five associations (not including the IRA) were proclaimed to be dangerous. After Partition similar provision was made. Regulation 24A, made by the recently-established Government of Northern Ireland under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922, criminalised membership of any of a number of organisations including the IRA. Over time, additions were made to the 1922 list, including (in 1966, by S R & O (NI) 1966/146):
"The organisation at the date of this regulation, or at any time thereafter, misappropriating, or claiming to use, or using, or purporting to act under, the name 'the Ulster Volunteer Force' or any division or branch of such organisation howsoever described."
In June 1939 the Government of the Irish Free State, which had earlier prohibited a number of bodies including the IRA under the Constitution (Declaration of Unlawful Associations) Order 1931 (No 73/1931), exercised a power conferred by section 18 of the Offences against the State Act 1939 to declare "that the organisation styling itself the Irish Republican Army (also the IRA. and Óglaigh na héireann) is an unlawful organisation and ought, in the public interest, to be suppressed" (Unlawful Organisation (Suppression) Order 1939 (No 162/1939)).
In section 19(1) of the Northern Ireland (Emergency Provisions) Act 1973 Parliament legislated to make it a criminal offence to belong or profess to belong to "a proscribed organisation". Subsections (3), (4) and (5) were to this effect:
"(3) The organisations specified in Schedule 2 to this Act are proscribed organisations for the purposes of this section; and any organisation which passes under a name mentioned in that Schedule shall be treated as proscribed, whatever relationship (if any) it has to any other organisation of the same name.
(4) The Secretary of State may by order add to Schedule 2 to this Act any organisation that appears to him to be concerned in terrorism or in promoting or encouraging it.
(5) The Secretary of State may also by order remove an organisation from Schedule 2 to this Act."
Schedule 2 listed six proscribed organisations, of which the first was the IRA. No express reference was made to any other organisation bearing the name IRA or any variant of that name.
The subsections of the 1973 Act to which I have just referred were almost literally re-enacted in section 1 of the Prevention of Terrorism (Temporary Provisions) Act 1974 which, however, added in subsection (5):
"In this section 'organisation' includes an association or combination of persons."
The only proscribed organisation expressly specified in the Schedule to this Act was the IRA.
The legislative formula adopted in 1973 and 1974 was repeated in a series of counter-terrorism statutes relating to either Northern Ireland or Great Britain: see section 1 of the Prevention of Terrorism (Temporary Provisions) Act 1976, when only the IRA was expressly specified in the Schedule; section 21 of the Northern Ireland (Emergency Provisions) Act 1978, when the IRA was the first of seven organisations expressly specified in Schedule 2 (and the definition of "organisation" was omitted); section 1 of the Prevention of Terrorism (Temporary Provisions) Act 1984, when the IRA was the first of two organisations expressly specified in Schedule 1 (and "organisation" was defined to include "any association or combination of persons", the definition now found in section 121 of the 2000 Act); section 1 of the Prevention of Terrorism (Temporary Provisions) Act 1989, when the IRA was the first of two organisations expressly specified in Schedule 1; section 28 of the Northern Ireland (Emergency Provisions) Act 1991, when the IRA was the first of nine organisations expressly specified in Schedule 2 (and the definition of "organisation" was again omitted); and section 30 of the Northern Ireland (Emergency Provisions) Act 1996, when the IRA was the first of ten organisations expressly specified in Schedule 2 (and the definition of "organisation" was once more omitted). In none of these statutes was express reference made to any organisation other than the IRA bearing that name or any variant of it.
The Northern Ireland (Sentences) Act 1998 ("the 1998 Sentences Act") was enacted to give partial effect to the Multi-Party Agreement made on 10 April 1998 (Cm 3883, 1998), commonly known as the Good Friday Agreement. It provides for the accelerated release of prisoners serving sentences of imprisonment for terrorist offences who meet four conditions. These conditions require the prisoner in effect to renounce violence. Thus the second of the conditions (section 3(4)) is that the prisoner is not a supporter of a specified organisation. The third condition (section 3(5)) is that, if the prisoner were released immediately, he would not be likely
"(a) to become a supporter of a specified organisation, or
(b) to become concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland."
The application of these conditions depends on the definition of "specified organisation" and a mandatory duty imposed on the Secretary of State, to be found in section 3(8), which provides:
"A specified organisation is an organisation specified by order of the Secretary of State; and he shall specify any organisation which he believes—
(a) is concerned in terrorism connected with the affairs of Northern Ireland, or in promoting or encouraging it, and
(b) has not established or is not maintaining a complete and unequivocal ceasefire."
Subsection (9) relates to the exercise of the Secretary of State's judgment under subsection (8)(b), and is not germane to the present appeal. Subsection (10) imposes further duties on the Secretary of State:
"The Secretary of State shall from time to time review the list of...
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