Should we feel any sympathy for the 500 or so protesters who were arrested in Trafalgar Square? They had been warned by the police that it was an offence to display signs supporting a banned terrorist group, in this case Palestine Action.
Their protest had been organised by a campaign group called Defend our Juries. So perhaps they thought they were opposing the government’s planned reforms. But the charge they face, under section 13 of the Terrorism Act 2000, has never been tried by a jury.
The protest group said it had been advised by its solicitors Hodge Jones & Allen that any arrests would be unlawful. That was because the High Court had upheld a challenge by Palestine Action to its proscription on 13 February.
But Dame Victoria Sharp said in court that ‘Palestine Action remains proscribed until further order’. And the High Court announced on 25 February that its order lifting the ban on Palestine Action would be ‘stayed pending determination of the [home secretary’s] appeal to the Court of Appeal’. So publicly supporting Palestine Action remains an offence.
Shabana Mahmood’s appeal has been expedited and will be heard later this month. Her lawyers are expected to remind the appeal judges that Huda Ammori, who co-founded Palestine Action, was unable to satisfy the court that it was a non-violent organisation engaged in peaceful protest.
‘At its core’, said the judges, ‘Palestine Action is an organisation that promotes its political cause through criminality and encouragement of criminality. A very small number of its actions have amounted to terrorist action.’
But the High Court allowed Ammori’s challenge on two grounds. The first was that the home secretary had breached her own policy. This says she may proscribe an organisation if she believes it is concerned in terrorism and it is proportionate to do so.
The proportionality test caused the court some difficulty. Mahmood’s predecessor Yvette Cooper had been advised that proscribing Palestine Action would provide
‘significant disruptive benefits beyond the current policing powers’ because it would allow members and supporters to be arrested. But that, said the court, was not consistent with the home secretary’s published policy. So the ban had to be quashed.
‘This conclusion may appear to rest on a very narrow basis,’ Sharp and her colleagues conceded. ‘The home secretary had, after all, formed the belief that Palestine Action is an organisation concerned in terrorism and in these proceedings the claimant does not challenge that decision.’
However, the judges continued, ‘this conclusion is a direct and necessary consequence of the policy the home secretary has applied to the exercise of her discretion to proscribe such organisations.’
The court then dealt with Ammori’s claim that proscription of Palestine Action restricted its supporters’ human rights.
‘Considering in the round the evidence available to the home secretary when the decision to proscribe was made’, Sharp concluded, ‘the nature and scale of Palestine Action’s activities, so far as they comprise acts of terrorism, has not yet reached the level, scale and persistence that would justify the application of the criminal law measures that are the consequence of proscription and the very significant interference with convention rights consequent on those measures.’
In other words, Palestine Action had organised only a small number of terrorist acts and there was no justification for criminalising people holding up signs.
Though this was never said, perhaps the court’s unspoken justification for this rather shaky legal reasoning was that it would avoid the pressure on the criminal justice system from some 3,300 potential prosecutions. But the Crown Prosecution Service believes it is up to the challenge. And it is under no obligation to prosecute everyone arrested.
I suspect the Court of Appeal will be more sympathetic to the home secretary’s concern that the earlier ruling, if allowed to stand, would make it more difficult for ministers to ban other terrorist organisations in the future.
And that is the reason MPs overturned a well-meaning but risky compromise on Tuesday. A House of Lords amendment to the Crime and Policing Bill would have allowed ministers to ban ‘extreme criminal protest groups’ that intended to commit serious offences for political purposes. The reform was proposed last month by Lord Walney, who served as Boris Johnson’s independent adviser on political violence and disruption. He said it would ‘avoid the controversy of people being arrested for holding up signs’.
But Jonathan Hall KC, the government’s independent reviewer of terrorism laws, advised ministers that Walney’s amendment risked ‘undermining the proscription power which has been an important mainstay of UK terrorism legislation’. Future defendants would argue that terrorism proscription was disproportionate when the same outcome could be achieved through designation as an extreme protest group.
Ministers are clearly determined to preserve their anti-terrorism powers. Let us see if the courts decide to support them.
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