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

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    21.  What was well known in 1973 became even better known over the blood-stained years which followed, during which Parliament had occasion to consider proscription not only when enacting the series of statutes already referred to but also when renewing, on an annual basis, those in force. Nothing can be clearer than that the Provisional IRA, as the principal authors of terrorist violence over these years, were understood to fall within the proscription regimes laid down in the various statutes.

    22.  The situation was, I think, transformed in 1998: first, because of the Good Friday Agreement, to which partial effect was given in the 1998 Sentences Act; and secondly, because of the Omagh bombing, attributed to the Real IRA as currently the active purveyors of IRA violence, and the 1998 Criminal Justice Act. The Sentences Act was no doubt directed to the objective of ending terrorist violence in Northern Ireland but its method, of offering freedom to convicted terrorists willing to renounce violence, was quite different from that adopted in the earlier legislation. To achieve its object a particular legislative approach was called for, so as to deny freedom only to supporters or likely supporters of groups currently practising or judged likely to practise violence. This, in my opinion, explains the particularity of, and the frequent changes in, the series of Specification Orders, which at all times included the Real IRA. When, in the wake of the Omagh bombing, Parliament amended the proscription provisions in the 1989 and 1996 Acts by enacting sections 1 and 2 of the 1998 Terrorism and Conspiracy Act (substantially repeated in sections 107 and 108 of the 2000 Act), it would have been nonsensical to leave the Real IRA outside the reach of those provisions. That Parliament did not intend to do so is in my opinion clearly shown by section 2B(1) inserted into the 1989 Act and section 30B(1) inserted into the 1996 Act, reproduced in section 107 of the 2000 Act and quoted in para 9 above. There is here the clearest recognition that an organisation may be specified under section 3(8) of the 1998 Sentences Act and either be or (importantly) form part of an organisation which was proscribed for purposes of the 2000 Act. The Real IRA was consistently specified under section 3(8). It either was, or formed part of, the IRA, an organisation proscribed for purposes of the Act. It may very well be that the Real IRA and other groups within the IRA family are separate in their membership and distinct in their aims, but this is precisely the type of unfathomable enquiry which subsections (1)(a) and (b) of section 3, read together, were intended to preclude. It would invite an almost theological enquiry, as in deciding whether the Old Believers in Russia or the Old Catholics in The Netherlands, Germany, Austria, Switzerland, Poland and elsewhere are the true keepers of the faith. Subsections (1)(a) and (b), although expressed in different language, in my opinion reproduce the effect of the formula first enacted in section 19(3) of the 1973 Act, and it imposes a single composite test: is this the body listed in the Schedule or a part or emanation of it or does it in any event operate under the name of an organisation listed in the Schedule? To that question the only possible answer on the admitted facts of the present case is the affirmative answer which the Court of Appeal gave. It is noteworthy that the Special Criminal Court sitting in Dublin on 10 October 2001, on more extensive evidence, reached a somewhat similar conclusion, quoted by the Court of Criminal Appeal McGuinness, O'Donovan and Herbert JJ (see Director of Public Prosecutions v Campbell (unreported), 19 December 2003):

    "…the labels such as 'official', 'provisional', 'continuity' or 'real' are irrelevant in considering whether a particular person or group of persons are within the ambit of the Suppression Order ie that he or they belong to an organisation which styles itself the Irish Republican Army or the IRA or Óglaigh na hÉireann. The so called 'Real IRA' are on all fours with the original IRA as it existed in 1939 in terms of the philosophy, objectives and structure and members of that group are within the ambit of the Suppression Order of 1939."

    23.  Mr Macdonald did not in oral argument press his submission based on article 7 of the European Convention, no doubt recognising that if he did not succeed on his construction argument he could scarcely succeed on this. His judgment was in my opinion correct. The principle expressed in para 52 of the European Court's judgment in Kokkinakis (see para 15 above) is not in question. A person should not be exposed to criminal liability if the law does not clearly define the offence he is said to have committed at the time of his committing it. It would be unjust to punish him for conduct he could not reasonably have known to be criminal. But that is not this case. No member of the Provisional IRA in the years after 1973 and no member of the Real IRA in the late 1990s could have been unaware that he was a member of a proscribed organisation.

    24.  For these reasons I would answer the referred question in the affirmative and dismiss the appeal. In accordance with the ordinary practice, the acquitted person will receive his costs of the appeal to the House out of central funds and the Attorney General will bear his own costs.

LORD WOOLF

My Lords,

    25.  My Lords, I have had the advantage of being able to read the speech of my noble and learned friend, Lord Bingham of Cornhill, in draft and gratefully adopt his account of the facts leading up to the present appeal and the history of the statutory provisions dealing with the proscription of terrorist organisations in Northern Ireland and in the United Kingdom. I have also had the advantage of reading the speech of my noble and learned friend, Lord Brown of Eaton-under-Heywood. I also adopt the account of the history of the activities of the three different organisations of the Irish Republican Army (the "IRA"), the Official IRA, the Provisional IRA and the Real IRA set out by the Lord Chief Justice of Northern Ireland in his judgment in the Court of Appeal. I do so because Mr Barry J Macdonald QC SC who appeared on behalf of Z accepted that this account of the history was generally accurate.

    26.  Her Majesty's Attorney General for Northern Ireland, Lord Goldsmith QC, rightly described the issue which we are required to decide as a short point of interpretation. However, "short points of interpretation" are not always easy to resolve and I have not found the issue that we are required to determine on this appeal entirely straightforward. Its difficulty is illustrated by the fact that although Lord Bingham and Lord Brown are in agreement as to what should be the result of the appeal their reasons for coming to their opinions differ.

    27.  The issue is set out in the reference of the Attorney General, pursuant to section 15(1) of the Criminal Appeal (Northern Ireland) Act 1980 as raising the following question:

    "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'?"

    28.  This question requires your Lordships to give their opinion on the following two points of law:

    "i.  Is the 'Real Irish Republican Army' an organisation listed in Schedule 2 of the Terrorism Act 2000 ("the 2000 Act")?

    ii.  Does the 'Real Irish Republican Army' operate under the same name as an organisation listed in Schedule 2 of the Terrorism Act 2000?"

    29.  Because it is so important to the issues I set out the terms of section 3 of the 2000 Act:

    "(1)  For the purpose 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 purpose 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."

    30.  Section 121 of the 2000 Act defines "organisation" as including "any association or combination of persons". This is clearly a wide and flexible definition.

    31.  Schedule 2 sets out 35 proscribed organisations of which the relevant organisation "the Irish Republican Army" is mentioned first. There is no other organisation which includes the words "the Irish Republican Army" mentioned.

    32.  The only other section that it is necessary to refer to is section 107 of the 2000 Act which makes it clear that an organisation which is proscribed by the 2000 Act can have constituent parts. (See section 107(b)).

    33.  Mr Macdonald's submissions on behalf of the acquitted person are attractively simple in relation to section 3. He relies upon two well established approaches to the interpretation of legislation which I would not question. The first is that it is the court's function to ascertain the intention of Parliament as expressed in the legislation. To emphasise this point, Mr Macdonald cited various well-known authorities but for my purposes, it is not necessary to do other than accept the general principle already stated. The same is true of his other principle of interpretation, namely that, as the provisions of the 2000 Act with which we are concerned are penal in effect (since section 11 of the 2000 Act makes it an offence to belong or profess to belong to a proscribed organisation), the provisions of the 2000 Act must be construed strictly. Here, Mr Macdonald relies upon the statement of Lord Esher MR in Tuck & Sons v Priester (1887) 19 QBD 629, 638. Lord Esher stated:

    "If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections."

    34.  Basing himself upon those two well established principles, it is Mr Macdonald's case that, as section 3 does not refer to the Real Irish Republican Army, the Real IRA is not a proscribed organisation. Realistically, Mr Macdonald accepts that all members of Parliament will have intended to proscribe the Real IRA but he submits Parliament passed an Act which, contrary to the intention of its members, did not contain the language needed to achieve Parliament's objective. This, submits Mr Macdonald, may be unfortunate, but it is not a disaster because as section 3 makes clear, action can be taken which should have been taken in the 2000 Act before it was enacted to include the Real IRA expressly. As to the ability to correct the situation, if this is necessary, Mr Macdonald is undoubtedly correct, but if he is correct it also follows that, if the Real IRA changes its name to the New IRA or a further organisational split takes place in which the Real IRA and the Real IRA 2 was created, there would be the same problem as is raised on this reference.

    35.  The position is, however, not as simple as Mr Macdonald would wish on behalf of his clients. There is now no organisation which can claim that it and it alone is entitled to be known as the IRA. In fact, there are at least three organisations which it would not be inaccurate to describe as being the IRA. There is the Official IRA, the Provisional IRA and the Real IRA. Faced with this situation, notwithstanding the principles on which Mr Macdonald relies and indeed, because of those principles, the House is, as it seems to me, forced to ascertain the intention of Parliament when it included the words "Irish Republican Army" in Schedule 2. Was Parliament referring to one or more and if so which of the organisations to which I have referred, or perhaps to other organisations that might claim that they are the IRA? When the issue is approached in this manner, it is ironic that it is the Real IRA, an organisation that claims now to personify the principles for which the IRA, in its opinion, stands, should be arguing so strenuously not to be the IRA.

    36.  Faced with this situation it is not in conflict with the principles on which Mr Macdonald relies for the courts to examine appropriate material to ascertain what Parliament meant should be the effect of section 3 and Schedule 2 to the 2000 Act when it used the language they contain. The proper approach, in my view, has been admirably expressed in terms upon which I could not improve by Lord Bingham of Cornhill in R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, 695. There relating to a different context, Lord Bingham stated the position as follows:

    "7.  Such is the skill of parliamentary draftsmen that most statutory enactments are expressed in language which is clear and unambiguous and gives rise to no serious controversy. But these are not the provisions which reach the courts, or at any rate the appellate courts. Where parties expend substantial resources arguing about the effect of a statutory provision it is usually because the provision is, or is said to be, capable of bearing two or more different meanings, or to be of doubtful application to the particular case which has now arisen, perhaps because the statutory language is said to be inapt to apply to it, sometimes because the situation which has arisen is one which the draftsman could not have foreseen and for which he has accordingly made no express provision.

    8.  The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. 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."

    37.  In accord with Lord Bingham's approach, here the controversial provision, namely to whom the reference to the IRA should be applied, has to be read not only in the context of the statute as a whole but in the context of the situation which led to its enactment. When this is done, there can be no doubt and any other view would be absurd, that the words of section 3 and Schedule 2 were intended to include the Real IRA which was the most active of the different organisations at the time of enactment. This conclusion is re-enforced when the relevant language of section 19 of the Northern Ireland (Emergency) Provisions Act 1973 ("the 1973 Act") is considered which for present purposes is as follows:

    "(1)  Subject to subsection (7) below, any person who-

    (a)  belongs or professes to belong to a proscribed organisation; or

    (b)  solicits or invites financial or other support for a proscribed organisation, or knowingly makes or receives any contribution in money or otherwise to the resources of a proscribed organisation, shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £400, or both, and on conviction on indictment to imprisonment for a term not exceeding five years or to a fine, or both.

    (2)  The court by or before whom a person is convicted of an offence under this section may order the forfeiture of any money or other property which at the time of the offence he had in his possession or under his control for the use or benefit of the proscribed organisation.

    (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 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."   (emphasis added)

    38.  A comparison of section 19(3) of the 1973 Act with section 3(1) of the 2000 Act makes it clear that, allowing for the difference in style in drafting in 1973 and today, section 19(3) of the 1973 Act is virtually identical in meaning to section 3(1) of the 2000 Act. The only difference is that the final words of section 19(3), "whatever relationship (if any) it has to any other organisation of the same name" have been discarded when drafting the 2000 Act.

    39.  The concluding words of section 19(3) of the 1973 Act which are not repeated in section 3(1) of the 2000 Act convey a strong message that the language which preceded those concluding words was to be given a generous application.

    40.  Schedule 2 to the 1973 Act contains the names of six proscribed organisations, the first of which is "the Irish Republican Army".

    41.  Interestingly, by the time the 1973 Act was passed, the Provisional IRA were on the terrorist scene. It was, by the time of the 1973 Act, the most active of the terrorist bodies and it is inconceivable that the language of section 19(3) and Schedule 2 could be interpreted in context as not proscribing the Provisional IRA. The Official IRA was, however, also on the scene, although quiescent.

    42.  In the case of section 19(3), I do not understand Mr Macdonald to disagree with the view that the section as a whole was apt to proscribe both the Official IRA and the Provisional IRA or at least the Provisional IRA. So far as the IRA was concerned, it was a blanket provision. It matters not whether the Provisional IRA are regarded as being the Irish Republican Army for the purposes of section 19(3) or they are regarded as being a name "which passes under a name mentioned in that Schedule". The point is entirely academic. The effect of section 19(3) as a whole is that the organisation that chose to carry on its activities under the name "Provisional IRA" was to be proscribed in the same way as the Official IRA was to be proscribed. The intent of the language that Parliament used was that there should be a seamless whole which was apt to make any organisation which operated under a name that included the words the "Irish Republican Army" proscribed. After all, organisations calling themselves the Official, Provisional or Real IRA have no monopoly in the name IRA but claim to be the IRA. They use the preface to differentiate between themselves but the important parts of their names are the words IRA.

    43.  Techniques in drafting of section 3 of the 2000 Act and section 19(3) of the 1973 Act differ. Section 3(1) of the 2000 Act is drafted more succinctly and more clearly than its predecessor. It is in a crisper, more contemporary style. However, there is no reason to think that the difference in style means that it should be interpreted in any different way from its predecessor in the 1973 Act. The concluding words of section 19(3) are omitted but although they gave an insight into the intention of the earlier subsection, the omission does not mean that the later subsection should be interpreted differently from its predecessor. Both subsections were intended to ensure that any organisation which has the IRA as part of its name was proscribed.

    44.  Parliament intended by the language it used that it should be unnecessary to engage in the sort of semantic and technical arguments that we have been involved in on the hearing of this appeal. Insofar as it is of any relevance, the difficulty that I have with Mr Macdonald's argument is that if the Provisional IRA can be, for the purposes of section 3(1)(a), the IRA, why is the same not true of the Real IRA. Both organisations came into existence by the same process at different dates. Both organisations regarded themselves as the successors of the "true" or Official IRA.

    45.  It is interesting that section 3(2) recognises that there may be a note in Schedule 2 which will prevent an organisation being proscribed as a result of section 3(1)(b). It is surprising that section 3(2) does not apply to both limbs of section 3(1). The only explanation that I find which is satisfactory for this difference in treatment is that section 3(1)(a) was intended to apply to the original organisation (the Official IRA) and section 3(1)(b) was intended to apply to any other organisation bearing the name IRA, including both the Provisional and the Real IRA who were both in existence at the time of the 2000 Act. The power to make a note was included because in 2000 it was recognised that the Provisional IRA, unlike the Real IRA, was engaged in the peace process. However, I do not find it necessary to come to any final decision about this because it is of no practical consequence. In any event, section 3(3) gives the Secretary of State ample power to add to or amend Schedule 2 to respond to any changes on the ground which mean that it is no longer necessary to proscribe a particular organisation.

    46.  I would, therefore, like my noble and learned friend, Lord Bingham of Cornhill encourage an approach to section 3(1) which involves treating the subsection as a composite whole.

    47.  For the reasons given in this opinion and by Lord Bingham, in his opinion, I would dismiss this appeal.

LORD RODGER OF EARLSFERRY

My Lords,

    48.  I have had the advantage of reading in draft the speech which is to be delivered by my noble and learned friend, Lord Brown of Eaton-under-Heywood. I am in entire agreement with it and, for the reasons he gives, I too would dismiss the appeal.

LORD CARSWELL

My Lords,

    49.  This appeal serves as a very good example of the principle of statutory construction that in seeking to ascertain the mischief towards which a statute is directed it can be of prime importance to have regard to the historical context. My noble and learned friend Lord Bingham of Cornhill addressed this issue in R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, 695 when he said in para 8 of his opinion:

    "The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty … Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. 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."

If the words of a statutory provision, when construed in a literalist fashion, produce a meaning which is manifestly contrary to the intention which one may readily impute to Parliament, when having regard to the historical context and the mischief, then it is not merely legitimate but desirable that they should be construed in the light of the purpose of the legislature in enacting the provision: cf Karpavicius v The Queen [2003] 1 WLR 169, 175-176 paras 15-16, per Lord Steyn.

    50.  Lord Bingham of Cornhill has set out in his opinion the material facts and the applicable legislation, which I gladly adopt and need not repeat. A summary of the history of the Irish Republican Army ("IRA") since 1969 was set out in the judgment of Kerr LCJ in the Court of Appeal. I am satisfied that the Court of Appeal and this House were entitled to take judicial notice of these facts, none of which was disputed by Mr Macdonald. I think that it is important to bear in mind, first, that every manifestation of violent republican paramilitarism has been the result of a split from a previously existing organisation. Secondly, every such manifestation has regarded itself, in the words of McGuinness J in the Irish Court of Criminal Appeal in Director of Public Prosecutions v Campbell (unreported), 19 December 2003 as "the carrier of the flame of republicanism, the possessor of roots of legitimacy". This is no doubt the reason why each has laid claim to the title Óglaigh na hÉireann, the name of the Irish Volunteers who played a part in the 1916 Easter Rising and subsequently became the original or "Old" Irish Republican Army.

    51.  At the time of passing the Terrorism Act 2000, as well as when it enacted the predecessor legislation, Parliament would have been very well aware of these facts. It has used the same term "The Irish Republican Army" throughout the series of statutes by which the IRA has been proscribed, in the knowledge that during that time there have been no fewer than four organisations using that title with different prefixes. By the time that the 2000 Act was passed, the Real IRA was in active being and the Omagh bombing had been attributed to it. It is inconceivable that Parliament did not intend to proscribe it, as Mr Macdonald frankly accepted, but his argument was that the statutory wording was such that it had not succeeded in doing so. I cannot accept this argument. It is in my view entirely clear that the words "Irish Republican Army" were intended as an umbrella term, capable of describing all manifestations or splinter groups. If this were not so, one could reach the absurd position that a group of disaffected members of one of the organisations could break away and give itself a similar prefix, such as "Genuine" or "Original", yet be free of the statutory proscription.

 
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