CA-2025-001983 - [2025] EWCA Civ 1311

The Act, as its long title indicates, is intended to make provision about terrorism. Part I of the Act defines terrorism. Section 1 provides that “terrorism” means action falling within subsection (2) and where the use or threat of such action is designed to influence the government or an international organisation or to intimidate the public or a section of it, or is done for the purposes of advancing a political, religious, racial or ideological cause. Subsection 1(2) provides that:

“(2)

Action falls within this subsection if it–

(a)

involves serious violence against a person,

(b)

involves serious damage to property,

(c)

endangers a person's life, other than that of the person committing the action,

(d)

creates a serious risk to the health or safety of the public or a section of the public, or

(e)

is designed seriously to interfere with or seriously to disrupt an electronic system.”

Part II of the Act deals with proscribed organisations. Section 3 is headed “Proscription” and provides as follows, so far as material:

“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.

…..

(3)

The Secretary of State may be 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”.

The making of orders is regulated by section 123 of the Act. An order may not be made under section 3(3) unless a draft has been laid before and approved by each House of Parliament: see section 123(4)(a) of the Act.

Sections 11 to 13 of the Act provide that a person commits an offence if he does certain specified acts in connection with a proscribed organisation. These include belonging to a proscribed organisation (section 11), inviting support for the organisation (section 12), or wearing an item of clothing or wearing, carrying or displaying an article, in such a way as to arouse reasonable suspicion that the person concerned is a member or supporter of the organisation (section 13). There are further offences concerned with terrorist property (defined in section 14 as money or property likely to be used for the purposes of terrorism, including any resources of a proscribed organisation). Those offences include inviting a person to provide money or other property intending that it be used for the purpose of terrorism (section 15), using money or property for the purposes of terrorism (section 16), fund-raising for the purposes of terrorism (section 17) and money laundering (section 18).

Section 4 is headed “Deproscription: application” and provides as follows, so far as material:

“4.

Deproscription: application

(1)

An application may be made to the Secretary of State for an order under section 3(3) or (8)–

(a)

removing an organisation from Schedule 2, or

(b)

providing for a name to cease to be treated as a name for an organisation listed in that Schedule.

(2)

An application may be made by–

(a)

the organisation, or

(b)

any person affected by the organisation's proscription or by the treatment of the name as a name for the organisation.

(3)

The Secretary of State shall make regulations prescribing the procedure for applications under this section.

(4)

The regulations shall, in particular–

(a)

require the Secretary of State to determine an application within a specified period of time, and

(b)

require an application to state the grounds on which it is made.”

The Secretary of State has made the Proscribed Organisations (Applications for Deproscription etc.) Regulations 2006 (“the Regulations”). These provide detailed provisions for the making of applications under section 4(1) of the Act (i.e. an application for an order removing the name of an organisation from Schedule 2 to the Act or providing for a name to cease to be treated as a name for an organisation listed in Schedule 2). Regulation 7 provides that the Secretary of State must determine an application within a period of 90 days beginning with the day after the day on which he receives an application.

Section 5 is headed “Deproscription: appeal”. That section establishes POAC and provides for an appeal to POAC against a refusal of an application to deproscribe an organisation (i.e. a refusal to remove the organisation from the list in Schedule 2):

“5.— Deproscription: appeal.

(1)

There shall be a commission, to be known as the Proscribed Organisations Appeal Commission.

(2)

Where an application under section 4 has been refused, the applicant may appeal to the Commission.

(3)

The Commission shall allow an appeal against a refusal to deproscribe an organisation or to provide for a name to cease to be treated as a name for an organisation if it considers that the decision to refuse was flawed when considered in the light of the principles applicable on an application for judicial review.

(4)

Where the Commission allows an appeal under this section, it may make an order under this subsection.

(5)

Where an order is made under subsection (4) in respect of an appeal against a refusal to deproscribe an organisation the Secretary of State shall as soon as is reasonably practicable–

(a)

lay before Parliament, in accordance with section 123(4), the draft of an order under section 3(3)(b) removing the organisation from the list in Schedule 2, or

(b)

make an order removing the organisation from the list in Schedule 2 in pursuance of section 123(5).”

An order must be laid in draft and approved by each House of Commons before it is made (save in cases of urgency as provided for by section 123(5) of the Act). There is provision for a further appeal, with permission, to the Court of Appeal (see section 6 of the Act).

Section 7 of the Act deals with the effect of an appeal on convictions for criminal offences. There is a right of appeal from the Magistrates’ Court to the Crown Court (or to the Court of Appeal (Criminal Division) where a person was convicted on indictment) – but only in respect of activities occurring after the date of the refusal by the Secretary of State of the application to deproscribe the organisation. Convictions relating to the period between the date of the making of the order adding the organisation to the list in Schedule 2 and the date of the refusal to deproscribe are unaffected and remain in existence. Section 7(1) of the Act describes the circumstances in which the right of appeal arises in the following terms:

“ 7.— Appeal: effect on conviction, &c.

(1)

This section applies where–

(a)

an appeal under section 5 has been allowed in respect of an organisation,

(b)

an order has been made under section 3(3)(b) in respect of the organisation in accordance with an order of the Commission under section 5(4) (and, if the order was made in reliance on section 123(5), a resolution has been passed by each House of Parliament under section 123(5)(b)),

(c)

a person has been convicted of an offence in respect of the organisation under any of sections 11 to 13, 15 to 19 and 56, and

(d)

the activity to which the charge referred took place on or after the date of the refusal to deproscribe against which the appeal under section 5 was brought.”