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Judgments - R v. Z (On Appeal from the Court of Appeal in Northern Ireland) (Northern Ireland)

HOUSE OF LORDS

SESSION 2005-06
[2005] UKHL 35
on appeal from: [2004] NICA 23




OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

R

v.

Z (Appellant) (On Appeal from the Court of Appeal in Northern Ireland) (Northern Ireland)

ON

THURSDAY 19 MAY 2005

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Woolf

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood


HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R v. Z (Appellant) (On Appeal from the Court of Appeal in Northern Ireland) (Northern Ireland)

[2005] UKHL 35

LORD BINGHAM OF CORNHILL

My Lords,

    1.  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.

    2.  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.

    3.  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)).

    4.  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.

    5.  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.

    6.  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.

    7.  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 organisations specified under subsection (8); and if he believes—

      (a) that paragraph (a) or (b) of that subsection does not apply to a specified organisation, or

      (b) that paragraphs (a) and (b) apply to an organisation which is not specified,

      he shall make a new order under subsection (8)."

    8.  In exercise of the power conferred by section 3(8) of the 1998 Sentences Act, the Secretary of State made, up to June 2003, four Northern Ireland (Sentences) Act 1998 (Specified Organisations) Orders. In the first (SI 1998/1882, made on 30 July 1998), four organisations were specified: "The Continuity Irish Republican Army", "The Loyalist Volunteer Force", "The Irish National Liberation Army" and "The 'Real' Irish Republican Army". In the second (SI 1998/2869, made on 18 November 1998), The Loyalist Volunteer Force was omitted but the three other organisations previously specified were again specified. In the third (SI 1999/1152, made on 11 April 1999) The Continuity Irish Republican Army and the 'Real' Irish Republican Army were again specified, The Irish National Liberation Army was not specified and two organisations were specified for the first time: "The organisation using the name 'The Orange Volunteers' and being the organisation in whose name a statement described as a press release was published on 14th October 1998" and "The Red Hand Defenders". In the fourth (SI 2001/3411, made on 12 October 2001), the four organisations specified in the third order were again specified, but there were three additions: The Loyalist Volunteer Force, The Ulster Defence Association and The Ulster Freedom Fighters. A fifth Order (SI 2004/3009, made on 14 November 2004) postdated the judgment now under appeal.

    9.  Reference has been made above to section 3 of the 2000 Act, the proscription provision on which this appeal turns. The 2000 Act does, however, cross-refer to the specification provisions of the 1998 Sentences Act. In section 107 it is provided:

    "Specified organisations: interpretation

    For the purposes of sections 108 to 111 an organisation is specified at a particular time if at that time—

      (a) it is specified under section 3(8) of the Northern Ireland (Sentences) Act 1998, and

      (b) it is, or forms part of, an organisation which is proscribed for the purposes of this Act."

Section 108 relates to evidence and provides, so far as material:

    "(1)  This section applies where a person is charged with an offence under section 11.

    (2)  Subsection (3) applies where a police officer of at least the rank of superintendent states in oral evidence that in his opinion the accused—

      (a) belongs to an organisation which is specified, or

      (b) belonged to an organisation at a time when it was specified.

    (3)  Where this subsection applies—

      (a) the statement shall be admissible as evidence of the matter stated, but

      (b) the accused shall not be committed for trial, be found to have a case to answer or be convicted solely on the basis of the statement."

    10.  Sections 107 and 108(1)-(3) of the 2000 Act were not new provisions. Following the atrocity perpetrated at Omagh on 15 August 1998, understood to be the responsibility of the Real IRA, Parliament was recalled in early September 1998 and enacted (on 4 September 1998) the Criminal Justice (Terrorism and Conspiracy) Act 1998 ("the 1998 Terrorism and Conspiracy Act". Sections 1 and 2 of this Act amended the 1989 Act (which related to Great Britain) and the 1996 Act (relating to Northern Ireland) by inserting provisions corresponding to what were to become sections 107 and 108(1)-(3) of the 2000 Act. Sections 107 and 108 apply to Northern Irish-related terrorism whether in Northern Ireland or Great Britain. It was an important object of the 2000 Act to assimilate the proscription regimes which had previously operated separately for Northern Ireland and Great Britain, and also to extend the proscription regimes to terrorist organisations, at home or abroad, not involved in Northern Irish-related terrorism.

    11.  When the list of proscribed organisations listed in Schedule 2 to the 2000 Act is compared with the list of organisations specified in the fourth specification Order, it is evident that a number of Northern Irish-related bodies appear in the former list but not the latter. Of the seven organisations specified in the fourth specification Order, five (all of them loyalist) are proscribed under Schedule 2 to the 2000 Act also. But whereas the fourth specification Order, like its predecessors, specifies "The 'Real' Irish Republican Army", Schedule 2 refers to "The Irish Republican Army", and whereas the fourth specification Order specifies "The Continuity Irish Republican Army", Schedule 2 refers to "The Continuity Army Council".

    12.  The reasoning of Girvan J can, I think, be analysed as involving six steps. (1) The Real IRA is identified under the 1998 Sentences Act as an organisation separate and distinct from the IRA. (2) Section 3(1)(b) of the 2000 Act focuses on whether the organisation of which a defendant is said to be a member operates as an organisation under the name specified in Schedule 2 to the 2000 Act. (3) The members of the Real IRA have a programme and purpose different from that of members of the IRA. (4) A person who links himself to the Real IRA to participate in a programme of continued republican violence despite the ceasefire could scarcely be said to have become a member of the IRA. (5) The Real IRA is not a proscribed organisation for the purposes of section 3 of the 2000 Act. (6) Were it to be accepted that the Real IRA was an organisation operating under the name of the IRA, the Crown would have to adduce evidence to establish that the organisation to which a defendant belonged did carry on its operations and activities under the name of the IRA.

    13.  The Court of Appeal took judicial notice of certain facts which Mr Barry Macdonald QC, SC, for the acquitted person, did not challenge as inaccurate:

    (1)  Until 1969 an organisation calling itself the IRA existed as a cohesive unit dedicated to unification of the 32 counties of Ireland, to which end it resorted to occasional violence (para 28 of the judgment).

    (2)  In about 1969 a major split occurred in the ranks of the IRA. Some members, claiming to be the true inheritors of the mantle of the IRA, in effect declared a ceasefire in 1972. They became known as the Official IRA. Other members (becoming known as the Provisional IRA) continued to assert their right and intention to use violence for the purpose of achieving unification. The two organisations existed independently of each other thereafter (para 28).

    (3)  In 1994 and again in 1997 the Provisional IRA declared a ceasefire. Dissident groups within the Provisional IRA opposed these moves, and in late 1997 one group (calling itself the Real IRA) dissociated itself from the leadership of the Provisional IRA and declared that the ceasefire was over (para 30).

    (4)  The Real IRA claimed responsibility for a number of acts of violence, most notably the bombing of Omagh in August 1998 (para 30).

    (5)  When the 2000 Act was passed, Parliament was well aware of the existence and activities of the Real IRA (para 32).

    14.  From these facts the Court of Appeal inferred, first (para 29), that in making it a criminal offence to belong or profess to belong to the IRA the legislature considered that such a provision was efficacious to make membership of both the Official and the Provisional IRA illegal and, secondly (para 32), that Parliament plainly intended to proscribe the Real IRA in the 2000 Act and intended that members of the Real IRA should be liable to prosecution under that Act for belonging to a proscribed organisation. The court concluded (para 34):

    "Given the history of proscription and in particular the fact that Parliament had frequently enacted proscription provisions designed to include both elements of the IRA (Official and Provisional) within the single rubric 'The Irish Republican Army', we have concluded that it was the intention of the legislature to include the 'Real' IRA within that term and that the legislation must be so construed."

The court explained the difference between the language of the 1998 Sentences Act and the 2000 Act in para 35 of the judgment:

    "This simply reflects the fact that some organisations within the generic term, 'The Irish Republican Army', were not on ceasefire and were not entitled to benefit from the accelerated release of prisoners scheme. They had to be identified separately, therefore. This was not necessary for the purpose of proscription since it was intended that all manifestations of the IRA should be proscribed."

    15.  In considering the meaning of section 3(1)(b) of the 2000 Act, the court considered (para 38) that its purpose

    "is to ensure that organisations that grow up as a result of schism within a named terrorist organisation and operate under a broadly similar name should be proscribed."

Had it been necessary to do so (para 41), the court would have held that the "Real" IRA was the same name as "The Irish Republican Army" for the purposes of section 3(1)(b). The court rejected a submission that article 7 of the European Convention on Human Rights had been violated. While acknowledging, on the authority of Kokkinakis v Greece (1993) 17 EHRR 397, para 52, that a criminal offence must be clearly defined in law, the court was of opinion (paras 51-52) that the offence charged against the acquitted person had been clearly defined.

    16.  In argument before the House, as in the Court of Appeal (see paras 23 and 33 of the judgment), Mr Macdonald realistically accepted that the Real IRA is a terrorist organisation deserving of proscription and that the intention of Parliament was that it should be proscribed. But he insisted that the task of the court is to interpret the provision which Parliament has enacted and not to give effect to an inferred intention of Parliament not fairly to be derived from the language of the statute. For this proposition he was able to cite a wealth of familiar but powerful authority: Salomon v A Salomon & Co Ltd [1897] AC 22, 38, per Lord Watson; River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763, per Lord Blackburn; Brophy v Attorney-General of Manitoba [1895] AC 202, 216, per Lord Herschell LC, for the Privy Council; Attorney-General for Canada v Hallet & Carey Ltd [1952] AC 427, 449, per Lord Radcliffe for the Privy Council; Ulster Transport Authority v James Brown & Sons Ltd [1953] NI 79, 114, per Lord MacDermott CJ; Corocraft Ltd v Pan American Airways Inc [1969] 1 QB 616, 638, per Donaldson J; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613, per Lord Reid. Mr Macdonald also relied on the important principle of legal policy, exemplified by Tuck & Sons v Priester (1887) 19 QBD 629, that a person should not be penalised except under a clear law, should not (as it is sometimes said) be put in peril on an ambiguity: see Bennion, Statutory Interpretation, 4th ed., (2002) p 705. Thus Mr Macdonald submitted that, whatever Parliament may have wished or intended, the Real IRA is not an organisation listed in Schedule 2 and no process of construction, properly so called, could lead to the conclusion that it is. Similarly, the Real IRA does not operate under the same name as an organisation listed in that Schedule: it operates under a name which is different, and intentionally different because chosen to convey that the Real IRA is a body separate in its membership and distinct in its aims from the IRA.

    17.  The Attorney General in his argument did not take radical issue with the principles of construction on which Mr Macdonald relied, and I would not for my part wish to throw doubt upon them. But the interpretation of a statute is a far from academic exercise. It is directed to a particular statute, enacted at a particular time, to address (almost invariably) a particular problem or mischief. As was said in R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687, 695 para 8:

    "The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment."

In the present case the historical context seems to me to be of fundamental, and in the end conclusive, importance.

    18.  All the Westminster and Stormont statutes to which I have referred above, whether taking effect in Northern Ireland or Great Britain, were directed to a common end: the elimination of Irish-related terrorism. (The Irish Act of 1939 had additional, rather wider, objects: see The People (DPP) v Quilligan and O'Reilly [1986] IR 495, 504, per Walsh J). The object of all these statutes, with the exception of the 1998 Sentences Act, was to suppress such terrorism by stifling the organisations which were dedicated to violence for political ends. By criminalising membership or professed membership of such bodies and other more active acts of participation, it was intended if possible to close them down but at least to impede their functioning. For nearly half a century after 1922 references to the IRA were unproblematical since, however shadowy and secretive that body might be, there was never more than one body bearing, or claiming to bear, that name or any part or variant of it.

    19.  By 1973, when the first in the modern series of statutes was enacted, that was no longer so. Nor, importantly, was it thought to be so. As the Court of Appeal recorded, the existence of two groups, the Official IRA and the Provisional IRA, each claiming to be the true embodiment of the IRA, loyal to its aims and ideals, was a known fact. In designing a proscription regime to counter the formidable threat which terrorism then presented, there was no doubt a choice of legislative techniques, one particular, one general. The particular approach would have proscribed the Provisional but not the Official IRA. The general approach was to proscribe the IRA using a blanket description to embrace all emanations, manifestations and representations of the IRA, whatever their relationship to each other, including the Provisional IRA. One course which would, if considered, have been rejected out of hand would have been to proscribe the IRA, meaning only the original IRA if it still existed or the Official IRA if it did not, since it would have been entirely futile to proscribe a body believed to have foresworn terrorism and omit a body believed to present a potent terrorist threat.

    20.  While a case could have been made for what I have called the particular approach, I do not find it hard to understand why (if considered) it was not adopted. The fissiparous nature of republican paramilitarism was already evident. One schism had already occurred. There might be further schisms. Or the separated groups might coalesce. And then perhaps split again. It would be very hard, if not impossible, for the authorities to prove the identity of a particular group or the relationship of one group to another at a given time. They would, to borrow language used by Lord Hewart CJ in a very different context (Coles v Odhams Press Ltd [1936] 1 KB 416, 426), be "taking blind shots at a hidden target". So the name IRA, intended to be comprehensive as embracing "any organisation which passes under a name mentioned in [Schedule 2] … whatever relationship (if any) it has to any other organisation of the same name" (section 19(3) of the 1973 Act), was understandably favoured. There was, no doubt, a risk on this approach that a group within the extended IRA family would be proscribed which was currently non-violent although appearing to be concerned in terrorism or in promoting or encouraging it, but it might well have been thought unlikely that a body bearing the name IRA or any variant of it would be at all friendly to parliamentary democracy.

 
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