29th September 2025
Where “a technicality” hides a fundamental error
There is an old chestnut of a phrase: “off on a technicality”.
What this usually means – or at least is usually intended to mean to mean – is that but for some procedural or evidential error, a person would have been found legally liable for a thing.
The term even has its own page at TV Tropes
The wording has become so common, however, that it now can cover the ending of any case, even if it would not be the case that a person would have otherwise have been found guilty or civilly liable. It now just means that a case has come to an end without any substantive finding either way.
It is a journalistic shorthand which can obscure as much as it explains.
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Last week the prosecution collapsed of Liam Og O hAnnaidh (Anglicised as Liam O’Hanna). The defendant is, of course, part of the Irish rap group Kneecap.
And according to the judgment which brought this case to an end:
On 21st November 2024, the Defendant performed as part of the rap group, Kneecap, at the O2 Forum, Kentish Town, in London. It is alleged that, as part of this performance, the Defendant displayed a Hezbollah flag in such a way or in such circumstances as to arouse reasonable suspicion that he is a supporter of a proscribed organisation.
Hezbollah (also known as Hizbollah) is a proscribed terrorist organisation under schedule 2 of the Terrorism Act 2000:
The group was added to the schedule, it seems, in 2019.
Under secton 13 of the 2000 Act a person in a public place commits an offence if he (or she) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he (or she) is a member or supporter of a proscribed organisation:
On the face of it it, if the prosecution can show that a defendant wore such a prohibited item the prosecution would be straightforward.
But.
The Terrorism Act – being terrorism legislation – imposes an additional burden on a prosecution when such an offence has been committed for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom.
The Terrorism Act provides that there is a safeguard.
Before a prosecution can be brought the consent of the Attorney General (or his or her deputy the Solicitor General) should be obtained – a consent which should (at least in theory) not be taken for granted.
This is not a trivial tickbox, but an important requirement set by parliament.
For terrorism legislation is special – it provides a powerful body of law in addition to the general criminal and civil law of the land. In principle, it should only be used sparingly and carefully, when the general law of the land is insufficient.
And because terrorism law is so powerful -especially in respect of how it can interfere with fundamental rights – it has these additional safeguards.
One such safeguard is that it not enough for the police and Crown Prosecution Service (CPS) to want to bring a prosecution in respect of a person who is a member or a supporter of a foreign proscribed organisation, it also needs the consent of the government’s most senior law officer.
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Terrorism law is important and it should be taken seriously, not least by the police and CPS.
But in this case, the police and the CPS did not take it seriously.
As Joshua Rozenberg helpfully sets out in his post on this case, the decision to prosecute was left to the very last minute of the six-month period (endind 21 May) to bring a prosecution:
There was then, on 22 May, what must have been a “oh XXXX” moment for the police and the prosecutors as it seems to have suddenly dawned on them that they needed the consent of the Attorney General (or his/her deputy the Solicitor General).
Whoopsie.
And so there was a scramble.
The police and the prosecutors were more like students with an essay crisis, than custodians of the public interest.
This was Keystone Cops stuff.
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There are errors, and there are errors.
There are technicalities, and there are technicalities.
Some technicalities are about a party not complying with the procedural rules of the court or attempting to put in evidence which is not admissible.
These can be serious errors but they are everyday errors, within the confines of litigation in action.
And then there are errors so fundamental – so basic – that they go to the very ability of a court to even hear a case.
These are jurisdictional errors.
(As Aslan might say, this is the deeper legal magic.)
If a court does not have jurisdiction, it cannot hear a case at all.
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If one looks at the judgment you will see that the judge – the most senior magistrate in England of Wales – is at pains to emphasise that his decision has nothing with the merits of the case:
4. This ruling is not about the defendant’s innocence or guilt rather only whether this court has jurisdiction to hear the case.
5. Therefore, this ruling is confined exclusively to the question of jurisdiction. It concerns whether these proceedings were lawfully instituted within the statutory time limit prescribed by section 127 of the Magistrates’ Courts Act 1980 and, crucially, with the necessary consents as required by S 117 Terrorism Act 2000.
6. It is neither necessary nor appropriate for the Court, at this stage, to engage with the merits of the underlying allegation, or to determine whether the offence is in fact made out from the evidence.
And the Chief Magistrate ruled that the court had not got jurisdiction:
75. Thus, I am satisfied that proceedings against this defendant were instituted on 21st May 2025 when the written charge was issued. At that time, the necessary consent and permission required by law had not been obtained. As such, the proceedings were instituted unlawfully and are null.
76. I therefore hold that the Crown has failed to establish jurisdiction. The proceedings instituted in this case are invalid and the Court has no jurisdiction to hear them.
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A jurisdictional challenge is not easy in any area of law. To bring such a challenge means telling the court they cannot even hear the case. These are often “brave” submissions.
And so it is no surprise that the defendant in this case instructed not one, not two, but three King’s Counsel, as well as a junior barrister:
Such a challenge would require resources not normally available to a defendant.
One wonders how many cases where there has been no jurisdiction have been brought where the defendant could have challenged jurisdiction but did not have the awareness or the means to do so.
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Some cynics have opined that this was a convenient way for the British state to get rid of what may have been an embarrassing case.
Not so here.
The judgment shows that the prosecutors worked hard – indeed were desperate – to get the judge to accept jurisdiction, and indeed they also knocked out the alternative basis for jurisdictional challenge.
This is actually a highly inconvenient ruling for the prosecutors, meaning they can no longer get by with retrospective consents.
They really will not like this.
Indeed, as Joshua Rozenberg reports at his post, an appeal by case stated is being seriously considered by disappointed prosecutors.
We can bet it is.
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At the bottom of this mess is a simple point: the police and the prosecutors were careless with terrorism law and careless about its express safeguards.
Things were left to the last minute and a consent (which may or may not have been given) – a step imposed by parliament as a crucial step – was not obtained.
And this mishap meant that the Chief Magistrate of England and Wales had no jurisdiction to hear what was on the face of it a terrorism case.
Police and the prosecutors should remember that this is terrorism law that they are dealing with.
Terrorism law should be taken seriously.
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Pardon my casual lay-woman question: Would you surmise that this requirement for the consent of the Attorney General (or his/her deputy the Solicitor General) might have implications for charges laid against the many protestors arrested for displaying placards supporting Palestine Action?
That is a good question. A future post may set out an answer.
Having just asked our AI overlords at Google, I understand that a working definition of terrorism can be expressed as, “the calculated use of violence or threat of violence tgo instill fear for political, religious, racial, or idealogical goals, often by non-state actors against civilian targets to influence a government or intimidate the public.”
This is far less controversial to us as members of a mature and largely lawful western society than the expression, “One man’s terrorist is another man’s freedom fighter”, which I mention not to be antagonistic but to remind myself that there are always two sides. Usually more.
What I find interesting about this post – and in particular the excerpt of the Terrorism Act 2000 (Part II) that DAG provides above – is the use of one specific word.
Supporter.
Specifically, the Act defines that someone has committed an offence under the Act if they wear or carry an article [image] “as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation.”
My question, upon reading this, would be: what is the difference between being a supporter of an organisation [my definition: an individual who takes material actions or steps to *support* the operational goals of that organisation], as opposed to a sympathiser towards the organisation [my definition: an individual who accepts some or all of the organisation’s goals as meritorious, but who takes no active role in their furtherance]?
I make the distinction here because balancing on this semantic knife edge we find the Thought Police.
Where is the line?
I appreciate that this is “a world away”, but there is currently immense pressure being applied by the Trump White House, trying to coerce the US Department of Justice to indict New York Attorney Laetitia James for mortgage fraud. I read the details of the case and what it boils down to is that James made a tick-in-box error on one solitary form when she applied for a mortgage for an out-of-state home. She was completing the form in order to authorise her niece to complete on the property purchase on her behalf, so that she did not have to travel there in person during a working week. All the other documentation James had signed and provided for the property purchase made it clear that she did not consider the property to be a primary residence, but on this one form she made a mistake – and Donald Trump is seeking to have her indicted for that error. We would probably agree with the DA who took up the case that there is no case to answer.
Is there a similar test that we could apply here? [A question distinct from : does UK law permit us to apply a similar test here?] If the accused in question had been actively fund-raising for Hezbollah, had been recruiting for them, or taking any other demonstrable active steps in support of a proscribed organisation, then there is clearly a case to answer.
There’s another test I’d like to consider here.
I’d like to ask if there is evidence to indicate whether or not this was a selective prosecution. For example, were there other people at the event in question with a Hezbollah flag? If so, were they arrested and charged with the same offence? In other public gatherings, have other private individuals been seen holding the same flag aloft? Have they all been charged with the same offence?
I ask because in this case I wonder if the decision to prosecute here was as much a question of publicity/visibility as anything else? Like it or loathe it, there is a world of difference between a private individual hoisting such a flag and a well known celebrity doing the same. The “star power” effect is the reason that we have celebrity endorsements and “influencers”.
I ask not to condone the actions, but to try and determine whether or not the individual in question has been singled out for prosecution because of their public visibility, perhaps as a discouragement to others.
If that is the case, then no matter how distasteful we find these actions, this becomes an instance of the application of the law for coercion and to chill free speech.
I appreciate this has become a provocative expression in these sensitive times and I reference it not to antagonise, but I try to remember the old saying that, “One man’s terrorist is another man’s freedom fighter.” No matter how difficult, we need to look at situations objectively, from both sides.
I’d like to read a considered answer to your points too
Having not read the Terrorism Act I came to this post as an ignorant lay person. Reading the excerpts DAG put up I did think who determines my intent if I wrap a flag around my shoulders? Or does intent not matter. If I write a piece of poetry about Gaza and illustrate it with a proscribed flag / symbol not as support but as a castigation am I breaching the act
There does seem to me (ignorant lay person) a degree of ‘mission creep’ in the application of these laws of late? Who determines intent? Thought?
” [my definition: an individual who accepts some or all of the organisation’s goals as meritorious, but who takes no active role in their furtherance]?”
As in “football supporter”, especially the bit about goals.
At risk of trespassing into a technical area outside my specific knowledge, I would make two points.
First, I think the timeline is interesting. The acts leading to the charge took place in London in November 2024, but it seems no attention was paid until April 2025, when something similar happened during a performance at Coachella, causing a kerfuffle in the US. BBC report here: https://www.bbc.co.uk/news/articles/cx2qq2n3800o
Should the English criminal law pay much attention to what a Northern Irish band says or does in the US, in relation to Israel or Palestine? Were the police pushed into action by adverse press coverage?
Whatever the trigger, it is seems the police then started to review videos of the band’s previous performances in England. Even so, it took almost a month before the English police took any definitive steps to bring a charge for the summary offence under section 13 TA 2000. Surely they could not have forgotten about the six month limit to start proceedings in the magistrates court?
Second, the requirement of section 117 TA 2000 is that most prosecutions under that Act require “the consent of the Director of Public Prosecutions” which I assume was readily apparent here – perhaps not the DDP personally, but someone acting with their authority.
But in some cases the DPP’s consent alone is not enough. Subsection 2A says “if it appears to the Director of Public Prosecutions … that an offence to which this section applies has been committed … for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom, his consent for the purposes of this section may be given only with the permission … (a) … of the Attorney General”
Oh dear. Perhaps we do need an appeal so a higher court can confirm in a binding manner (or deny) it cannot be presumed that the DPP is acting with the permission of the AG, and that AG permission cannot be granted or ratified retrospectively.
Ideally one would be granted specific permission in advance in each case, but would it be possible for some sort of general permission to be given?
Who should have checked with/referred to the AG? There’s references to the Crown in the judges remarks, but do they refer to the hearing, rather than the process? Should the police have referred the case to the AG at the same time as referring to the CPS? Or should the CPS have recognised the terrorism aspect from the referral and referred it on to the AG themselves?
I’m intrigued by the insightfulness of your challenge on checks and references, but I’d like to take the principle you express in a different direction.
I’ve worked for part of my career in the Financial Services industry – and I’ve worked for companies where it is entirely routine for every single employee to have to undertake AML (Anti-Money-Laundering) and KYC (Know Your Customer) training, even though I’ve never worked in a “business” area and never had any interaction with either clients or their money.
Applying those safeguards – ensuring that people with a risk to legal exposure are made aware of their circumstances – I’m interested in exploring the idea of whether or not their is an obligation on e.g. a venue owner, or broadcaster, to warn a guest, performer or act that they have various legal obligations which they ignore at their peril.
I appreciate that, specific to the legal world, we have the truism that “Ignorance of the Law is no defence”.
But the law is a complex, living thing. It changes over time. If we consider this in terms of “What would be the least surprising thing?” then how would we evaluate an “either/or” scenario in which we say,
“Either anyone who works as a public performer is expected to know all the laws they need to comply with when performing, or we ensure that public performers are reminded of their obligations before they perform.”
To be clear, I am not convinced that either of these extreme-end-of-the-pendulum-swings are correct. Rather, I am trying to approach this from the question of “How should we approach this question if our goal is to ensure that people comply with the Terrorism Act?”
Perhaps the answer here is “We can’t go round telling everyone of all their legal obligations all the time” – which is fair. But going back to my opening remark about AML and KYC training… if the Financial Services industry can do this, perhaps we can leverage that model and apply it elsewhere.
If the law is so complex or obscure that lots of people need to be reminded of it, then it’s bad law and should be fixed.
In the specific case of the very minor level of support for a terrorist organisation relevant here, it simply should not be illegal on the grounds of freedom of speech.
Perhaps this case – or more likely the recent avalanche of placard and T-shirt based “terrorism” cases – was the cause for some guidance on the AG consent process being published just last month.
https://www.gov.uk/government/publications/consent-of-the-attorney-general-to-prosecute-process-guidance/consent-of-the-attorney-general-to-prosecute-process-guidance
Urgent cases can be decided within hours.
As our terrorism legislation has become more extensive, we have lost a clear sense of it representing an exceptional intrusion into our rights, justified by exceptional risks, but demanding exceptional safeguards. Watch for the consequences of this case being a weakening of the safeguards, through legislation, rather than a restatement of why the safeguards are important.
I think a far more interesting aspect of the case is the actual legistaion (quoted above) – you can be convicted of something while provably innocent, as the law says that the offence is “to arouse reasonable suspicion”. It’s entirely possible to arouse reasonable suspicion about something, yet have proof available that the suspicion, however reasonable, was mistaken.
It is a different and important aspect, but not necessarily more interesting.
Although that safeguard is in place for cases mainly concerning support for activities outside the UK, do we think that is sufficient to properly acknowledge the material difference between those cases and cases involving support for domestic acts of terror?
I would have hoped that the AG would see the difference, and not permit a prosecution for merely expressing support where no
direct UK threat exists. Terrorism legislation is too powerful to be used on relatively trivial behaviours like flag-waving which do not actually support any threat to us here.