Palestine Action is a UK-based organisation that states its aim is to ‘end Israeli apartheid’. Its members have been accused of criminal damage targeting the UK arms industry, which the group claims is complicit with Israel in ‘genocide’.
On 5 July, the home secretary proscribed Palestine Action by statutory instrument. Under section 3 of the Terrorism Act 2000, the home secretary may proscribe any organisation they believe is concerned in terrorism. That includes committing or participating in acts of terrorism, preparing for, promoting or encouraging terrorism or otherwise being concerned in terrorism. Section 1(1) of the act defines terrorism as the use or threat of ‘action’ where it is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. Under section 1(2), the ‘action’ must:
- Involve serious violence against a person;
- Involve serious damage to property or endanger a person’s life;
- Create a serious risk to the health or safety of the public; or
- Be designed to interfere/seriously disrupt an electronic system.
Where firearms or explosives are involved, there need not be an intention to influence.
Palestine Action describes its actions as ‘non-violent, yet disruptive’, stating it has not caused harm. This is the first time proscription has been used against a group claiming to reject violence.
Notwithstanding the statutory definition, many people may not equate criminal damage with ‘terrorism’. The legislation was initially intended to address the threats posed by organisations such as various IRA groups and Al-Qaida, which have claimed responsibility for mass violence.
The government disputes the group’s claim of non-violence, citing pending proceedings that prevent it from publishing information, but alleging serious incidents ‘involving violence, significant injuries and extensive criminal damage’. Details will no doubt emerge in due course, but the group and its supporters have not been widely observed advocating violence in the name of its cause, as you would expect from a traditional terrorist group.
In response to the proscription, a demonstration was held in London on 9 August at which a number of people simultaneously unveiled handwritten signs which stated ‘I oppose genocide. I support Palestine Action’. Police made 552 arrests, including 532 under section 13 of the act. Section 13 makes it an offence to wear an item of clothing or display anything that arouses reasonable suspicion that that person is a member or supporter of a proscribed organisation, with a maximum sentence of six months’ imprisonment. The Metropolitan Police reported it as the largest number of arrests in a single day in a decade.
Those arrested included elderly people and/or those of good character, unlikely to pose any threat to people’s safety or wellbeing. Comparisons have been drawn with groups such as Just Stop Oil and Extinction Rebellion, whose actions, although criminal and disruptive to national infrastructure, are not widely considered to amount to terrorism.
Public nuisance or terrorism?
The criminal law is already adequately equipped to deal with campaigners who go too far without recourse to terrorism legislation. For example, members of Just Stop Oil who disrupted traffic on the M25 received custodial sentences of up to four years, having been convicted of conspiracy to cause public nuisance.
The effect of proscribing Palestine Action is that those who simply express support for the group (for example, just by peacefully holding up placards and not necessarily committing a criminal offence per se) risk conviction for terrorism offences. Even where sentences are light, such convictions can have long-term consequences, including travel restrictions and employment barriers. Should the state be prosecuting those who voice support for Just Stop Oil without engaging in criminal acts themselves, in the same way it prosecutes Palestine Action supporters? Just Stop Oil is not proscribed, but like Palestine Action supports criminal damage as part of direct action linked to beliefs.
It has been argued that proscription and its resulting consequences are an unlawful, unnecessary and disproportionate interference with supporters’ rights to freedom of expression and freedom of peaceful assembly and association under articles 10 and 11 of the European Convention on Human Rights. This is particularly so where a large proportion of the population supports the underlying sentiment: concern about the plight of the people of Gaza, a concern that the government itself has expressed. The High Court will consider a judicial review based, inter alia, on these grounds in November.
Concerns have also arisen over the misapplication of the law. For example, Laura Murton reported being threatened with arrest for holding a Palestinian flag and having signs saying ‘Free Gaza’ and ‘Israel is committing genocide’ while peacefully protesting. Officers told her that her demonstration expressed views supportive of Palestine Action, despite her explicitly saying she did not support it. Proscription risks having a discouraging effect on those wishing to express legitimate political views for fear of being wrongly criminalised, while creating legal uncertainty if enforcement appears inconsistent.
Individuals charged with a criminal offence relating to Palestine Action may seek to rely on a ‘Boddington defence’, as per Boddington v British Transport Police [1998] UKHL 13, in which it was held that a defendant in a criminal case may argue that secondary legislation is unlawful in their defence. In doing so, they would be challenging the validity of the statutory instrument (that is, whether it was correct to proscribe Palestine Action). Until the judicial review is resolved, this risks conflicting rulings in the criminal courts as well as an inundation of Palestine Action cases, adding to an already significant backlog.
Vicky Lankester is an associate at Brett Wilson, London
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