Courts and the administration of justice

The Palestine Action proscription case and the botched prosecution of Liam Óg Ó hAnnaidh – how the Home Office, the police, and the prosecutors, are not taking terrorism law seriously

13th March 2026

Hello and welcome to The Empty City blog, the new name of which is explained here.

Terrorism law is important and should be credible

Let us start with the most basic point about terrorism law.

Terrorism law should be credible and taken seriously.

Terrorism law is a special body of law, in addition to the general laws of the land, conferring special powers and creating special rules in respect of the threat of terrorism.

As such, of all areas of law, it should be taken seriously and it should be credible.

The United Kingdom never really used to have terrorism law, at least in permanent form.

Instead we had, for example, a succession of temporary Prevention Of Terrorism Acts, of deliberately limited duration, renewed as and when by parliament.

And it was on this improvised legal basis that the United Kingdom dealt with the the terrorism that flowed from the “Troubles” in Northern Ireland, which came to an end to a large extent with the Good Friday Agreement of 1998.

Somehow those threats had been dealt with and a sort of resolution achieved without the need for any permanent terrorism legislation.

And then something changed.

And after 2000 the United Kingdom, year-on-year, created a body of permanent terrorism law, creating a security state within the state.

This was partly because of 9/11 and what followed – though the 2000 Act received royal assent before that dreadful tragedy.

And it was partly because of (perhaps counter-intuitively) the Human Rights Act 1998, which required all interferences with the fundamental rights of individuals to have an express legal basis. In other words, some of this stuff had been going on before, but there had been no statutory framework, as it had not been needed.

But after 2000, and for whatever reasons, permanent terrorism legislation grew like topsy.

Looking at the titles of the primary legislation, you may think that the “anti-terrorism” and “counter-terrorism” Acts would cancel out the “terrorism” Acts, but: no. The effect is accumulative.

In addition to the eleven Acts listed above from 2000 to 2025, we have had other extensive primary legislation on surveillance and data retention and national security.

According the the legislation website we have also had 163 items of secondary legislation with “terrorism” in the title since 2000.

Huge piles of new legislation on terrorism since 2000.

But, still, terrorism legislation should be taken seriously and be credible. Even if one can be concerned at the ever-growing extent of terrorism law, it serves – or should serve – an important legal purpose.

Terrorism legislation provides – or should provide – a special body of law for dealing with terrorism which cannot be done with the general law of the land.

The problem is that recent events have shown that terrorism legislation is not being taken seriously – and it is not being taken seriously by those who should take it seriously: the government, the police, and the public prosecutors.

And this is obvious from how section 13 and related provisions of the Terrorism Act 2000 (as amended) are treated by those with public power.

Here are three examples.

First, the proscription of Palestine Action by the Home Secretary was been ruled unlawful by the High Court.

(On this, see my posts here and here.)

The details of the High Court judgment show a Home Office that did not take the proscription seriously, imposing the sanction on flimsy or non-existent basis.

Even if the Home Office reverse this ruling on appeal, this is the sort of measure that should not have come anywhere close to a successful legal challenge.

The courts are usually deferent on matters of national security, and the judges were not impressed by Palestine Action, but even the High Court could not buy this proscription.

And this was because the Home Secretary and the Home Office did not take terrorism legislation seriously.

Second, the botched prosecution of Liam Óg Ó hAnnaidh, the Kneecap rapper, shows the police not taking terrorism legislation seriously.

(See my Prospect post from yesterday here.)

The police did nothing about an alleged incident for six months, even though supposed breaches of terrorism law should presumably be dealt with swiftly and diligently.

And then the police panicked at the six-month deadline for the relevant offence – and royally mucked up because they had not got the relevant consent in time.

From Kneecap to Keystone.

These are the same anti-terrorism officers who, of course, are supposed to be keeping us safe.

And then we have the public prosecutors in the same case.

When the defendant’s lawyers rightly pointed out that the prosecution was void for want of jurisdiction – because the requisite consent was not in place in time – the Chief Magistrate of England and Wales (no less) threw out the prosecution.

But the public prosecutors could not accept this decision.

Liam Óg Ó hAnnaidh simply had to be prosecuted for the alleged incident, no matter the cost to the public purse, and no matter the effect on settled case law.

The Director of Public Prosecutions resorted to the rarely used appeal by case stated to get the High Court to reverse the decision of the Chief Magistrate of England and Wales.

One would think that given the substantial delays and backlogs in the criminal justice system – some now lasting years – and which are seemingly so bad that the jury system itself may be dismantled – would mean that the Crown Prosecution Service would have better things to do.

But no, Liam Óg Ó hAnnaidh simply had to be prosecuted.

The High Court, however, were not impressed with the appeal.

The High Court pointed out that siding with the Director of Public Prosecutions in this matter would disrupt plain statutory provisions and settled caselaw.

The High Court even went to the extent of stating its “concern” at the “mistake” for which there should be “blame” in a classic passage of judicial understatement (emphasis added):

“It is a matter of concern that a charge which both the DPP and the Attorney General considered met both parts of the Full Code Test for Crown Prosecutors will never now be determined. There was, they decided, a realistic prospect of conviction and the prosecution was in the public interest. We have not investigated the reasons for this failure and nor do we seek to attribute blame. That is not because these circumstances are not worthy of consideration but because they are irrelevant to our decision.”

Ouch.

The Director of Public Prosecutions, of course, should not have wasted their department’s scarce (and valuable) resources on this hopeless appeal. The Crown Prosecution Service should concentrate on putting cases together, not trying to cover its back for when a mistake was made.

By the Director of Public Prosecutions and the Crown Prosecution Service pretending no mistake had been made (with an appeal based on an extraordinarily unconvincing case theory with no basis in any authority), they too showed they did not take the applicable terrorism law seriously.

By saying terrorism law should be taken seriously one is not denying that there is a purpose to terrorism law.

It is to say that terrorism law should not be taken lightly.

Credibility of any area of law can be fragile, and terrorism law deserves better than recent antics of the Home Office, the police, and the public prosecutors.

This post is also cross posted at The Empty City substack, which is run in parallel with this blog.

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What the Palestine Action judgment means – and what it does not mean

13th February 2026

The High Court rules against the government, but not with enthusiasm

This morning the High Court handed down its judgment in the Palestine Action proscription challenge.

I wrote a quick commissioned piece at Prospect within a couple of hours of the judgment being handed down – and I just want to add and develop a few thoughts.

First, the judgment shows the independence of the High Court in two ways.

A ruling against the government by definition indicates the independence of the judiciary from the executive.

(For what it is worth, I thought a decision against the government was possible when it switched from being a single judge to a three judge panel headed by the President of the King’s Bench Division – a “strong bench” – for a strong bench would be more likely to rule against the government on a matter of national security than a single judge. That said one can never “read” any High Court judge(s).)

But the judgment shows the independence of the court in another refreshing way.

For if you look at the judgment it is plain that the court is not impressed by Palestine Action.

It is always heartening to see a court side with a party with which it has little or no sympathy. It means the court has not got carried away with motivated reasoning in favour of the party it wants to win.

The court said bluntly:

“[Palestine Action’s] campaign is intended to close down the operations of a company pursuing a lawful business. The campaign has not been pursued with restraint. The wide range of targets is significant. It lays bare that Palestine Action’s campaign and pursuit of criminal damage is designed to intimidate the persons and businesses targeted so they end their commercial relationships with Elbit. Palestine Action is not engaged in any exercise of persuasion, or at least not the type of persuasion that is consistent with democratic values and the rule of law.”

Anyone coming across that passage early on in a judgment might have expected Palestine Action to have lost the case.

But no.

The court found in favour of Palestine Action anyway.

Second, it was an impressive legal win – even if the court was not impressed by Palestine Action.

To win any judicial review against the government on a terrorism-related matter is difficult.

And to win any challenge to any statutory instrument (such as the one which proscribed Palestine Action) is difficult, as opposed to challenging a mere exercise of discretion by an official or a minister.

To do both is remarkable.

Third, the government really only has itself to blame.

Here I mean both the government in general as well as the current administration.

In 2019 the government widened the scope of the relevant Terrorism law to include expressions of support for a proscribed organisation. (Technically this was done by parliament, but at the government’s behest.)

It must have seemed a good, illiberal idea at the time.

But it meant if an organisation was proscribed for one purpose – to target its organisation, membership and fund-raisers – it also criminalised expression of support too.

It became a one-size fits all provision which meant any proscription automatically infringed the right to free expression of those who were not organisers, members or fund-raisers.

This in turn meant that a court – like today – would look at any proscription with anxious scrutiny.

By wanting to prohibit more and more, the government made any proscription more exposed to legal challenge.

It was a very daft move by the then government.

The government has also only got itself to blame in another way – and here it is the current administration.

It is hard to read the judgment and see the then Home Secretary and her officials as anything other than hapless.

For although legally the High Court decided against the Home Office on two pleaded grounds – in reality the reason the Home Office lost the case was because the proscription was botched.

One gets the sense from the judgment (and from the surrounding news of the time) that those at the Home Office wanted to push terrorism law to its limit – against a group which, even if not peaceful protesters, did not really fit the definition of terrorism – knowing that this would, at a stroke, criminalise not only those involved but anyone who expressed support for the group.

Those at the Home Office knew this was a stretch.

It must have been obvious that the information before them did not substantiate the proscription.

And the court today ruled it was a stretch too far.

Fourth, the judgment today – in and of itself – does not change anything.

The law is the same today as it was yesterday – and at the time of the various mass arrests for those expressing support of Palestine Action.

The reason for this is that the court has not yet made an Order giving effect to its judgment.

And until and and unless an Order is made the legal positions of all involved stay the same.

This is because judgments – per se – do not normally have any legal effect until they are encapsulated by an Order.

(Orders are the sausages which come out of the judicial sausage factory, in the same way statutes are the sausages which come out of the parliamentary sausage factory.)

The court deliberately has delayed making an Order, and it would seem that the law may stand until and unless the government seeks an appeal.

And so Palestine Action remains a proscribed criminal organisation and expressing support for it remains a criminal offence.

Finally, the government will no doubt throw everything at the appeal.

But the government threw everything at this hearing – and it still lost.

Perhaps the government will win on appeal.

The judgment today was balanced on both grounds on which the Home Office lost – it may not take much to shift those balances.

But a more sensible government would not appeal.

As I set out back in September 2025, the government is over-reaching with using terrorism law in this case.

But if the government really wants to proscribe Palestine Action it should put a two-clause bill through parliament making it that a proscription of an organisation, its members and fund-raisers does not automatically criminalise expressions of support for that organisation.

If the government keeps over-reaching, it may fall flat again.

And an adverse appeal judgment will be more damaging for the government than this judgment at first instance.

Nothing the Home Office will throw at the appeal will take away the fact that this was a botched proscription based on incomplete material.

The Home Office mucked up.

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1642’s Five Members vs 2026’s Six Members

12th February 2026

History rhymes.

Sometimes it is the historians that rhyme in how they write their histories; sometimes even it is actually the events themselves that rhyme.

Source: Wikipedia.

When President Trump sought this week to bring criminal charges against six members of Congress this seemed to rhyme with when Charles I sought to arrest five members of Parliament (and a oft-forgotten peer) in 1642.

The latter event, which may not have seemed that significant in the hectic rush of events in 1642, as the kingdoms of England, Scotland and Ireland moved further towards what we call the civil war(s) – but it certainly gained symbolic importance later.

It is why even now the door of the House of Commons is slammed shut in the face of the king’s messenger at the state opening of Parliament.

What the 1642 and the 2026 events have in common are at least two things.

First, the ruler (king/president) believed that targeting a handful of political opponents with the coercive powers of law would serve some useful political purpose.

Second, both the 1642 and 2026 attempts failed.

What the 1642 and the 2026 attempts do not have in common is why they failed.

In 1642, the targeted opponents were able to escape before the arrest attempt.

But in 2026, the targeted opponents were saved by the grand jury that procedurally has to endorse any indictment.

This blog is a great fan of juries.

Not all juries are the same – in different legal systems (and sometimes within a legal system) juries fulfil different functions.

But one thing juries tend to have in common is that they make decisions which, but for a jury, would be made by someone else.

In essence, juries take key decisions out of the hands of those who may be minded differently.

In England we do not have grand juries deciding on indictments, though that would not be a bad idea.

In England we do have jury trials under frequent attack from government – the current pretext for “reform” is “efficiency”.

But as I aver over at Prospect – CLICK HERE, in a phrase which blog has often used: juries are important not so much for the powers they have, but for the powers they prevent others from having.

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Trump v the BBC cont’d: an odd and desperate letter from the US media regulator

22nd November 2025

Or: why you should have your evidence in place before you threaten a law suit

Last week President Trump said:

“We’ll sue [the British Broadcasting Corporation] for anywhere between $1bn and $5bn, probably sometime next week.”

That “next week” was this week, and that was the week which was.

There has been no news of any law suit being filed by Trump in Florida or anywhere else. There is not even news of a formal response to the rather good reply which the BBC is reported as having sent.

Perhaps it will be this coming week, or perhaps he has “moved on”.

Who knows.

But there has been a development in the story.

The Federal Communications Commission (FCC) – the United States counterpart to our Ofcom – has sent the BBC a letter.

You can read the news report here and the FCC has published the letter on their website.

And it is an odd and desperate letter.

It is odd because, on the face of it, the FCC do not regulate the BBC.

But the FCC make out that they have a concern because the Panorama programme complained of may have been distributed to a US affiliate of the BBC.

You would think that the US media regulator would be able to ascertain whether the programme was broadcast in the US by an affiliate broadcaster. You would think that the FCC would be aware of TV listings and so on.

But no.

The FCC is having to ask a UK broadcaster about what was shown (or not) by the US broadcasters which the FCC regulates.

And it is desperate because it indicates that Trump and his lawyers do not have any evidence themselves that the programme was broadcast or otherwise distributed in the US.

The sender of the letter, Brendan Carr the head of the FCC, is a close Trump ally – and you may recall his pratfall in seeking to cancel the Jimmy Kimmel show.

There would be no reason for Carr and the FCC to seek to ascertain such evidence if that evidence was already available to Trump and his lawyers.

When the legal threat to the BBC was published this blog and others pointed out that it contained no evidence whatsoever that the programme was watched in the US. Indeed, a close reading of the letter revealed an attempt to skate over that point.

This failure to provide any evidence meant that the letter was weak, notwithstanding its strident tone and colourful phrasing.

(As a general rule, the more a litigation letter relies on rhetoric, the weaker that letter is.)

A letter such as Trump’s legal threat to the BBC really should not be sent unless the evidence is in place.

But this new FCC letter indicates that there is no such evidence in place, and so there is now a scampering around to get the evidence.

Perhaps such evidence will come to light.

Perhaps Trump and his lawyers can stand up their claim with this help from the FCC.

Perhaps Trump will sue the BBC.

Perhaps he will be awarded $1bn dollars in damages.

Who knows.

(And I am not an American lawyer.)

But what we can know is what evidence has been placed before us to back up the claims made by Trump and his letters, and there has been no evidence made available of the programme having effect in the US or of any damage having been suffered.

You would have thought Trump would have had attention to this matter.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Why the BBC is right not to pay damages to Trump

14th November 2025

By apologising, the broadcaster has taken the sting out of Trump’s excessive attack

I have done a piece at the New Statesman where I used to be legal correspondent, you can read it here.

You can comment below.

A close look at Trump’s $1 billion claim against the BBC

11th November 2025

The litigation letter is weak, but his underlying practical position is not weak

The headlines are eye-catching.

Other, similar front pages are here.

What is going on?

And what can be usefully said from a United Kingdom perspective about this threat by the President of the United States of America to sue our state broadcaster, the British Broadcasting Corporation?

This post is divided into three parts: (1) what is being complained about, (2) what can be said about the threat from a legal perspective, and (3) how this threat fits into he context of how President Trump uses civil litigation and threats of civil litigation.

In essence: what are the facts, what is the legal analysis, and what is the practical position.

Posts like these take time and opportunity cost – and this blog (currently) is free-to-view and does not have advertising. So if you do genuinely value independent and informed law and policy commentary (rather than AI slop, client journalism, or litigation PR) please become a paying subscriber.

Let us begin.

The complaint is in respect of a Panorama programme broadcast by the BBC on 28 October 2024, which is well over a year ago.

The BBC page for the programmes is here:

You will see on that page that “this episode is not currently available”.

You will also see that dates of the broadcast:

Note that the broadcast dates are before Trump’s successful election on 5 November 2024.

And if you look carefully at that page you will also see that the programme was not made by the BBC, but by a third-party production company. This was thereby not made directly by the BBC news teams, though they would have presumably reviewed and approved the content before broadcast.

This distinction between production and broadcast is not unusual for such programmes.

There is also no evidence that the programme broadcasts were readily available in the United States:

As regards the content complained of, the Guardian have provided this handy comparison, which you should now click on and watch:

It is a speech by President Trump on 6 January 2021.

In the Panorama edit two parts of the speech are put together so to give the impression that a single statement was made – effectively a succinct incitement to violence:

“We’re going to walk down to the Capitol and I’ll be there with you, and we fight. We fight like hell.”

In fact the first part – “We’re going to walk down to the Capitol…” – and the last part – “…and we fight. We fight like hell” – were at different parts of the same speech. Indeed, the two passages are about 54 minutes apart.

From a journalistic and editorial perspective, the Panorama edit is misleading. It conveys the false impression that the two statements were said in one go. There is nothing in the Panorama edit to suggest any passage of time between the two utterances.

As such, from a journalistic and editorial perspective, the Panorama edit is indefensible and it should not have been broadcast.

However, not all journalistic and editorial errors are breaches of the law.

For such an error to be unlawful as well as unfortunate something else is needed. A complainant needs to bring the error into the scope of the applicable law, which in England and Wales, for example, would the laws of libel and of malicious falsehood.

A journalistic or editorial error is not, in and of itself, actionable at law.

So what is the legal complaint of President Trump and his legal representatives?

According to Sky the legal letter is as follows:

Re: Demand to Retract False And Defamatory Statements About The President of the United States of America

Dear All:

This law firm serves as litigation counsel for President Donald J Trump (hereinafter referred to as “President Trump”). Please direct all future correspondence relating to this matter to my attention. This correspondence serves as a demand under Florida Statute § 770.011 that you immediately retract the false, defamatory, disparaging, and inflammatory statements made about President Trump, which were published in a Panorama documentary that was fabricated and aired by the BBC.

Failure to comply will leave President Trump with no choice but to pursue any and all legal rights and remedies available to recover damages for the overwhelming financial and reputational harm that the BBC has caused him to suffer, with all rights and remedies being expressly reserved by President Trump.

In the Panorama documentary, titled “Trump: A Second Chance”, which was first broadcast on October 28, 2024 – a week before the 2024 United States presidential election – the BBC intentionally sought to completely mislead its viewers by splicing together three separate parts of President Trump’s speech to supporters on January 6, 2021.

The documentary showed President Trump telling supporters: “We’re gonna walk down to the Capitol and I’ll be there with you and we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”

This fabricated depiction of President Trump was false and defamatory given that President Trump’s actual and full remarks were: “We’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down any one of you but I think right here, we’re going to walk down to the Capitol and we’re going to cheer on our brave senators and congressman and women.”

Moreover, the BBC edited out President Trump saying, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Thus, as set forth in an internal whistleblower memorandum, the BBC’s segment maliciously made it appear that President Trump “[said] things [he] never actually said,” by editing together footage from the start of the speech with a separate quote early an hour later.

Due to their salacious nature, the fabricated statements that were aired by the BBC have been widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide. Consequently, the BBC has caused President Trump to suffer overwhelming financial and reputational harm.

A. Applicable law

Words are defamatory under Florida law when “they tend to subject one to hatred, distrust, ridicule, contempt or disgrace or tend to injure one in one’s business or profession.” Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022) (quoting Am. Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) (citation and quotation marks omitted)). Statements are defamatory if “the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts.” Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022) (quoting Jews for Jesus, 997 So. 2d at 1108).

Further, “where the speaker or writer neglects to provide the audience with an adequate factual foundation prior to engaging in the offending discourse, liability may arise.” See Zambrano v. Devanesan, 484 So. 2d 603, 607 (Fla. 4th DCA 1986).

Even if the BBC attempts to whitewash its conduct as simply an expression of its opinions, Florida law makes clear that such a defense will not absolve its liability. See Dershowitz v. Cable News Network, Inc., 541 F. Supp. 3d 1354, 1362 (S.D. Fla. 2021); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990) (”Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications.”) (emphasis added); see also Eastern Air Lines, Inc. v. Gellert, 438 So. 2d 923, 927 (Fla. 3d DCA 1983) (“[A] statement that although ostensibly in the form of an opinion ‘implies the allegation of undisclosed defamatory facts as the basis for the opinion’ is actionable.”) (emphasis added).

Consequently, the BBC lacks any viable defense to the overwhelming reputational and financial harm it has caused President Trump to suffer.

B. Demand

The above-referenced false, defamatory, malicious, disparaging, and inflammatory statements were published to deliberately denigrate President Trump. The timing of the fabricated documentary is evident.

The BBC’s reckless disregard for the truth underscores the actual malice behind the decision to publish the wrongful content, given the plain falsity of the statements.

Accordingly, President Trump hereby demands that you:

1) immediately issue a full and fair retraction of the documentary and any and all other false, defamatory, disparaging, misleading, and inflammatory statements about President Trump in as conspicuous a manner as they were originally published;

2) immediately issue an apology for the false, defamatory, disparaging, misleading, and inflammatory statements about President Trump; and

3) appropriately compensate President Trump for the harm caused.

Moreover, please allow this letter to serve as notice to you, to your affiliated entities, subsidiaries, to all of their employees, and any other person acting on behalf of or in concert with the BBC, to preserve any and all evidence related in any way to the above-mentioned malicious, false, and defamatory statements the BBC published, and any other statements that the BBC has published regarding President Trump.

By way of this letter, the BBC is hereby directed not to destroy, conceal, or alter any paper or electronic files, physical evidence, and/or other data relating in any way, no matter how remote, to your false claims regarding President Trump, and/or the circumstances leading to their dissemination, including, but not limited to:

1) all communications between you and any third party in any way related to your wrongful claims regarding President Trump;

2) all sources for your false claims regarding President Trump;

3) any and all documents and data referring to, reflecting, or relating to communications between you and any such third parties or sources regarding your false claims regarding President Trump; and

4) any and all documents in any way related to your false claims regarding President Trump. This includes any information alleged to be protected by Florida Statute § 90.5015. Monarch Air Group, LLC v. Journalism Dev. Network, Inc., No. 23-CV-61256, 2025 WL 445491, at *1 (S.D. Fla. Feb. 10, 2025) (interpreting Fla. Stat. § 90.5015 and explaining that the Eleventh Circuit “recognizes a qualified privilege for journalists, allowing them to resist compelled disclosure of their professional news gathering efforts. This privilege shields reporters in both criminal and civil proceedings.”) (quoting United States v. Capers, 708 F.3d 1286, 1303 (11th Cir. 2013)).

I understand that many records and files are maintained electronically. However, this letter specifically requests that all paper and hard copy originals be maintained and preserved in their original format.

By the same token, electronic documents and the storage media on which they reside may contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists and has been preserved, please preserve and maintain all electronically stored documents in their original native format, including all metadata.

This preservation demand specifically encompasses any and all electronic documents, including but not limited to, all word-processed files, emails, spreadsheets, all databases, log files, and any other electronically stored and/or generated documents or files.

If the BBC does not comply with the above by November 14, 2025, at 5:00 p.m. EST, President Trump will be left with no alternative but to enforce his legal and equitable rights, all of which are expressly reserved and are not waived, including by filing legal action for no less than $1,000,000,000 (One Billion Dollars) in damages.

The BBC is on notice.

PLEASE GOVERN YOURSELF ACCORDINGLY.

[ ]

(That last term in block capitals is a feature of US litigation letters.)

There some rather odd things about this legal threat.

First, the letter states in three places about the the reputational harm caused to Trump:

“…the BBC lacks any viable defense to the overwhelming reputational and financial harm it has caused President Trump to suffer”

“…the overwhelming financial and reputational harm that the BBC has caused him to suffer”

“…the BBC has caused President Trump to suffer overwhelming financial and reputational harm.”

The Panorama programme was broadcast in the United Kingdom days before Trump was re-elected in the United States.

It is impossible to see how Trump being re-elected is consistent with him suffering any harm by the broadcast, let alone “overwhelming financial and reputational harm”.

And if you look closely at the letter, no harm is even shown – let alone “overwhelming financial and reputational harm”.

Instead harm is merely asserted – rather than demonstrated.

As such this seems a weak litigation letter.

The failure by this letter to show harm then feeds into the threat that Trump may sue for “no less than $1,000,000,000 (One Billion Dollars) in damages.”

Because no harm is shown, this figure is arbitrary.

The letter may have said one dollar or a trillion dollars and would have made as much rational sense.

It is a preposterous demand.

The letter is also alert to the inconvenient truth that the programme was not actually broadcast in the United States. This is is why the following passage is included:

“…the fabricated statements that were aired by the BBC have been widely disseminated throughout various digital mediums, which have reached tens of millions of people worldwide.”

There is no evidence in the letter that anyone in the United States, let alone Florida, either saw the programme or even know of its existence.

Interestingly, in the demands for document retention, the letter fails to even ask the BBC for evidence of the extent of downloads and broadcasts of the programme. This is a strange omission, if this was a serious legal threat.

I am not an American lawyer, and so I can offer no view on the merits of this legal threat under the laws of Florida. Even what can seem weak litigation letters may have traction in other jurisdictions.

But if this threat was made under the laws of England and Wales (Scotland and Northern Ireland have their own legal systems) one would say that this claim also had its weaknesses over here.

First, it is would be out of time: there is a one year limitation period.

Second: the claimant would have to show – and not merely assert – serious damage to their reputation. The letter does not do so.

And third: the ceiling for damages claims for libel in England and Wales is about £300,000 – and any award over £100,000 is rare.

This rules out one million pound claims, let alone one billion pound claims.

Would the BBC have any defence in a hypothetical case brought in England, regardless of the above defences?

A straight defence of truth would not be available – Trump did not say what the Panorama edit had him saying, at least not in one go.

However, the truth defence also covers things which are “substantially” true. This is a riskier defence to mount, but if the BBC did mount it would be along the lines of Trump did effectively promote an insurrection, even if he did not say in one go what was said in the Panorama edit.

Here the BBC could point to findings of Congressional committees and the terms of the impeachment of Trump passed by the House of Representatives (even though he was not convicted by the Senate). The BBC could also say that the 54 minute gap between the statements did not necessarily mean that the latter statement – “fight like hell” – was not an incitement.

An English court would also have regard to the programme as a whole, and also to Trump’s speech as a whole.

Whether Trump was an insurrectionist would presumably not be something Trump would want to have decided by an English court on the basis of the civil standard of proof – the balance of probabilities.

On the other hand, it was a bad journalistic and editorial fail, and so the BBC would not relish this being decided by the London high court either.

On the face of it, if this was litigated at the high court in London (and assuming limitation was not a problem, and the claimant was able to show serious damage) one could see it going either way, though one would expect a successful claim to be worth only about £30,000.

Stepping back, what we have here is an overstated claim on a somewhat artificial basis. Until recent news reports, one suspects neither Trump nor anyone else in the US even knew about the Panorama programme.

And given he was re-elected president (in the USA) days after broadcast (in the UK), any claim for damages would seem to fall flat.

But.

The facts of the Panorama edit are ugly for the BBC. It was a bad mistake, and so it would not be one where a confident defence could be mounted.

And this, in turn, means Trump has leverage.

Trump loves leverage.

For Trump, civil litigation is a form of deal-making – the promotion of his political and business interests by other means.

One should not approach his legal manoeuvres as if they are cases that will go all the way. They are skirmishes intended to force a deal, a compromise, a back-down by the other side.

A confident BBC would admit a mistake and move on without admitting legal liability.

But we do not have a confident BBC.

We have a media corporation lacking confidence.

Trump loves media corporations -and other institutions – that lack confidence.

And although one would hope the BBC would mount a complete defence to any claim being brought in a jurisdiction where a programme was not even broadcast and where no damage has been shown, one can also imagine the BBC seeking to make amends including by means of compensation (of licence fee payers money) so as to avoid litigation.

The litigation letter may be weak, but Trump’s underlying practical position is strong: the BBC made a mistake, and he knows how to take full advantage of it.

So putting aside the theatrics of a bombastic letter with its senseless $1 billion claim, there is a power play here which Trump has done many times before.

And the real mistake of the BBC (and the production company) was opening itself up to such a play of power.

***

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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An odd DPP letter and a curious government witness statement – an overall view of the dropped Chinese prosecutions

20th October 2025

In a few posts last week I wrote about the dropped prosecutions of the two alleged spies for China. These posts were here and, on Friday, at Prospect (click here).

Partly publishing these posts was because of the inherent interest of the case, and partly this was because new information arose – in particular, the government witness statements.

Just now taking a step back, why should this case be of any wider interest? Why is not just another collapsed case, one of many that happen every court day?

The interest does not come (for me) from it being related to China. This is not a foreign policy or a security policy blog, and I am indifferent whether the other country involved in this case is China or any other country.

This is, however, a blog about legal messes, and it is a blog that often focuses on close readings of documents (usually so as to understand how legal messes come about).

And in this case, there is a mess. A major prosecution has been dropped and nobody – at least outside of the Crown Prosecution Service (CPS) – knows why. But what we can be reasonably certain about is that the CPS’s public reasons for dropping the case do not add up.

(It initially seemed the government’s position also did not add up, but the publication of the witness statements rebutted this view. That said, we do not know what, if any, other interventions the government may have made.)

Then there are two extraordinary documents.

The first is the letter dated 7 October 2025 from the Director of Public Prosecutions (DPP), the head of the CPS, to two parliamentary committee chairs. In this he gets the court wrong whose decision he is blaming and curiously switches from the first person to the third person at a significant point.

The second is the first witness published statement, the only one (correctly) dated from before the charges were made against the two defendants. Here, as this blog has shown, the witness is being asked by the CPS to give evidence under the wrong Act. This is why he does not give evidence that China is an “enemy”.

My opinion is that the letter dated 7 October 2025 is a misleading document.

The error by the DPP (of all people!) to get the court wrong – referring to the (generally civil) high court instead of the criminal court of appeal on appeal from the criminal court) – suggests he was not personally familiar with the case in question. It is the sort of mistake senior lawyers make when they have not actually read a case themselves. As such it looks more a line-to-take he has inserted into the letter from somebody else.

Lets look further:

I am satisfied that the decision to charge this case in April 2024 was correct. This was on the basis of where the law stood at that time in relation to the requirements of the Official Secrets Act 1911.

But we know from the first witness statement that the witness was not asked about the legal test in the 1911 Act. He was asked about the test in the 2023 Act which did not apply at the relevant time. So unless there is evidence of which we do not know, the decision to charge was based on evidence for a different offence, which did not require evidence of an enemy.

If this is correct, the quoted statement above cannot be right.

Lets go on:

Some weeks later, a High Court decision (R v Roussev and others 2024) ruled that “enemy” for the purposes of the 1911 Act includes a country which represents at the time of the offence, a threat to the national security of the UK.

Here is referring to a decision of the court of appeal on appeal from the crown court.

But this decision widened the definition of “enemy” not narrowed it.

This means if the evidential test had actually been met before it would necessarily have been met again.

This too is not a correct statement by the DPP.

(And “weeks”? The court of appeal decision of July 2024 is not only weeks after the charging decision of April 2024.)

It is however correct that the DPP now start pressing the government for evidence about the enemy. This explains the second (incorrectly dated) witness statement of 21 February 2025 and the third witness statement of 4 August 2025.

Why did it take until February and August 2025 for the witness to be asked to give evidence which is (supposedly) prompted by a court decision of July 2024?

It seems that it is not until February 2025 that the CPS actually have the evidence that would have justified the original charging decision of April 2024, let alone any re-visiting of that evidential test.

And finally:

In the light of this new judgment, it was considered that further evidence should be obtained. Efforts to obtain that evidence were made over many months, but notwithstanding the fact that further witness statements were provided, none of these stated that at the time of the offence China represented a threat to national security, and by late August 2025 it was realised that this evidence would not be forthcoming. When this became apparent, the case could not proceed.

This account is also not correct.

The second (incorrectly dated) witness statement of 21 February 2025 and the third witness statement of 4 August 2025 both provide evidence that China is expressly a threat, especially paragraphs 4 to 7 of the latter statement

To say that “by late August 2025 it was realised that this evidence would not be forthcoming” makes no sense against the published witness statements.

Sentence-by-sentence, paragraph-by-paragraph, the DPP letter dated 7 October 2025 does not add up, and it contains a sequence of incorrect and misleading statements.

It is an odd letter for a DPP to send about a legal mess.

And as this blog focuses on legal messes and close readings of such documents that is why this blog has published a few posts on this subject.

The analysis on this blog, however, does not make out any conspiracy theory. As is said above, we do not know why the prosecution was dropped – and there may be evidence of interventions and decisions which we do not have.

We only know, on the basis of official documents, that the official explanation makes no sense.

***

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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What the Chinese spying case witness statements reveal

16th October 2025

The Crown Prosecution Service appears to have made at least one serious error, while the government’s position now makes sense

Yesterday this blog sought to make sense of the decision to drop the Chinese Spying prosecutions on the information then available, and averred that both the positions of the government and the Crown Prosecution Service did not make sense.

Now the government has published three witness statements, the picture now changes. The government’s position now makes sense, and the CPS looks as if it made at least one serious mistake and possibly another.

The ‘Joy of Witness Statements’ is a book yet to be written.

One always has to be careful with witness statements. They are documents created for a specific purpose: that is to put witness evidence before a court.

They are not essays or expositions to be read generally. They are not literary texts, as such. If there is something in a witness statement not relevant to something which needs to be decided by a court then it usually should not be in a witness statement.

And so when looking at any witness statement the key question is: what was the court being required to decide? You then work backwards from that question to see what is (and what is not) in a witness statement.

Witness statements can be read from beginning to end, like some linear narrative. But that is not the purpose of witness statements. They are complex documents, not linear.

Each paragraph – and each sentence – of a witness statement should related to something which needs to be put before a court.

As such they are documents more akin to computer programs, allowing the court to perform a certain task.

(One common fault of political comentators and literary historians is to use the content of witness statements without regard to what information was needed and not needed to be put before a court.)

Yesterday the government of the United Kingdom took the extraordinary step of publishing three witness statements. These are documents which the public rarely get to see. Indeed unless the evidence is repeated in open court, the public would rarely get to know the evidence in such witness statements.

This is especially so in respect of national security matters, where a culture of secrecy means such documents are restricted.

Regardless of any other point, the publication of these statements is a boon for the public understanding of law and should be welcomed.

The government should do it more often.

What do these witness statements tell us and not tell us?

First they tell us that the Crown Prosecution Service thought it needed to put evidence before the court.

In particular, as set out in paragraph 3 of the first witness statement dated 22 November 2023, the witness appears to have been asked to provide an “assessment of whether providing information of the type that was alleged to have been provided […] was prejudicial to the safety or interests of the [United Kingdom].”

Here the witness is, of course, echoing what he has been asked to provide.

But.

The statutory wording he is echoing is from the National Security Act 2023.

However, the defendants were not being charged under the 2023 Act but under the Official Secrets Act 1911. The 2023 Act was not in force at the time of the alleged offences.

This first witness statement thereby looks as if the witness was asked the wrong question by the CPS.

The required evidence was not that the material “was prejudicial to the safety or interests of the [United Kingdom]”.

The witness statement had to put evidence in relevant to the 1911 offence – material “which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy”.

So: presumably there was a tactful exchange between the CPS and the government and a new witness statement was required.

Was China an enemy?

You will see that paragraph 4 of the second statement now discusses whether China was a “threat”.

The following paragraph 5 then seeks to substantiate the assertion that China is a “threat” and paragraph 6 then rows that back a little.

This second witness statement was dated 21 February 2024.

The charges are then announced on 22 April 2024.

On 16 July 2024 the Court of Appeal hands down its decision on another Official Secrets Act 1911 case, which sets out that one test for the offence is whether the country in question “represents a current threat to the national security of the UK”.

In a letter to MPs, the DPP says of this period:

“In the light of this new judgment, it was considered that further evidence should be obtained. Efforts to obtain that evidence were made over many months, but notwithstanding the fact that further witness statements were provided, none of these stated that at the time of the offence China represented a threat to national security, and by late August 2025 it was realised that this evidence would not be forthcoming. When this became apparent, the case could not proceed. This was a professional assessment made by CPS lawyers experienced in prosecuting national security and espionage cases, applying the Code for Crown Prosecutors.”

We now come to the third witness statement dated 4 August 2025 – over a year later from the Court of Appeal decsion.

It can be seen that the CPS had now asked the witness to substantiate that China “represents a current threat to the national security of the UK”.

And so the witness sets out more detail on that point, even adding a sub-heading:

You will see the word “threat” in paragraphs 4 and 7.

Paragraphs 5 and 6 instead use the word “challenge” – but even in paragraph 6 there is mention of “economic power to coerce”.

You will also note that, contrary to news reports, paragraphs 4 and 7 show the witness was not only applying the previous government’s policy, but was also giving his own assessment of the threat of China at the relevant time.

The witness again adds a paragraph rowing back a bit, but not much.

So the CPS now not only had paragraph 5 of the second witness statement, it also had paragraphs 4 to 7 of the third witness statement.

The question for the CPS was whether paragraph 5 of the second witness statement and paragraphs 4 to 7 of the third witness statement were enough to show China “represents a current threat to the national security of the UK” at the material time.

You may think that this evidence does, in spades.

But the CPS took the view that not even paragraphs 4 to 7 of the third witness statement were enough to meet the evidential test for there to be a realistic prospect of a conviction.

And so the prosecution was dropped.

But the content of paragraphs 4 to 7 of the third witness statement is hard to square with the DPP’s statement to MPs that “notwithstanding the fact that further witness statements were provided, none of these stated that at the time of the offence China represented a threat to national security”.

The CPS decision that the evidence in the witness statements, especially in the third statement, did not meet the evidential test for a prosecution seems perverse.

If this evidence did not meet the test, then what would?

The overall impression given by the witness statements is that the CPS position looks muddled. It still makes no sense.

They appear to have used the wrong law when getting the first witness statement, asking the witness to provide evidence in respect of the 2023 offence and not the actually applicable 1911 offence.

Although this error seems to have been corrected by the time of the second witness statement, it raises the question as to whether the CPS applied the correct law when making the charging decision.

If they got the law wrong at that stage, that would explain how somehow the evidential test was “met” at charging stage but not later on.

In any event, the decision to drop the prosecution for evidential reasons makes no sense in view of the third witness statement.

As for the government, it looks like the allegation that the government wrongly stuck to the policy of the previous government is not well-founded.

And it looks like the government did what it could to provide the CPS with relevant evidence.

As such, what looked like a nonsensical position yesterday for the government becomes, well, sensical.

Some may say that the witness could have been more robust in his second and third witness statements as to the threat of China.

But there is nothing to indicate that he was undermining or compromising that view. Indeed paragraphs 4 to 7 of the third witness statement provide a plain account of a then-current threat to national security.

There may be evidence which we have not seen about the government’s position, and of any interventions by ministers and officials, but on the basis of the additional information now available from the three witness statements, the fault for the collapsed prosecution lies with the CPS, and not the government.

Trying to make sense of the nonsensical decision to drop the Chinese spying prosecutions

15th October 2025

How the positions of neither the CPS nor the government stand up to scrutiny

Usually when one reads up about a confusing-looking case the less confusing it becomes. The is usually because there will be contextual points which make odd looking things seem less odd.

But sometimes the more you find out about a case the more confusing it becomes.

And the dropping of the Chinese spying prosecutions is very confusing indeed.

It simply does not make sense, on the information available.

This is not a foreign policy blog and I have no expertise about China as a matter of foreign and security policy. The two defendants in the now-dropped case maintain their innocence, and nothing in this post suggests otherwise.

But this is a blog which often features and explores legal messes – and this is a god-awful legal mess.

Yet legal messes are often instructive – and looking at them can help the public understanding of law.

Seeing how something goes wrong in practice lets us understand how law operates in the real world.

When the prosecution was first dropped I noticed the use of a certain phrase.

So I wrote:

The only point this blog will emphasise is that the prosecution was dropped because the “evidential threshold” could not be met.

This is an interesting detail.

Why did this detail stand out?

Well, because it is not normal.

By way of background, a prosecution has to meet two “code tests”.

The first is the evidential test – does the available evidence make out the elements of the offence so that there is a realistic chance of conviction?

The second is the public interest test – regardless of the evidential threshold being met, is the prosecution still in the public interest?

If both tests are met then there can be a prosecution.

And both tests are (supposedly) kept under review as the prosecution progresses.

But in practice, there is usually no significant movement on either test between the original charging decision and trial. It is rare for there to be a shift.

This prosecution, which had initially met both tests, was dropped because it no longer met the evidential test.

This was strange.

It is rare – especially in a major case – for the evidence base to change so radically from the initial charging decision to the eve of trial so that the evidential test could no longer be met.

This is not the normal course of events.

What had changed?

My initial view (which may still have something going for it) was that the evidential test was being used to do the job of the public interest test, but for some reason the public interest had been ruled out.

Sometimes legal messes happen because some area of law or practice is being used (misused, abused) for a purpose for which it is neither fitted nor intended, and what then happens is the unhappy consequence of a misconceived and/or illiberal move.

The Crown Prosecution Service and the government have certainly got themselves in knots in how re-applying the evidential test brought this case to an end. Would it not have been smoother just for the public interest test to be re-applied if geo-political stuff about Chinese threats had changed?

Few would perhaps gainsay an evaluation of the public interest in a national security case like this.

But no: the evidential test was used, and – as we will see – it makes no sense.

There is nothing in the news reports and official statements regarding this case to suggest that the direct evidence against the defendants had changed.

The documentary, witness and (presumably) expert evidence against the defendants appears to be the same on the day the case was dropped as on the day they were charged.

Sometimes key direct evidence becomes viewed as inadmissible; or there may be fresh evidence (either way); or the soundness of an expert opinion may be shaken. It happens – rarely – but it happens.

But that does not seem to have happened here.

Nor does there seem to be an exclusion of evidence on the basis of public interest immunity.

The direct evidence base in respect of what the defendants personally did and did not do seems unchanged.

On the face of it what changed was not evidence about the defendants but about the “enemy”.

Here we need to look at the relevant statutory offence.

The offence charged was under the Official Secrets Act 1911:

section 1 of the Official Secrets Act providing information useful to an enemy.

The wording is somewhat out-of-date – “sketch” etc – and the Act has now been replaced with a more modern statute. But this was the offence that in force at the time.

The key phrase for us is “directly or indirectly useful to an enemy”.

One may take the view that this reference is not to any particular enemy, but to any enemy. The enemy does not even need to be a nation state.

Imagine, for example, a mercenary spy who takes sensitive information with the view of selling it to the highest bidder, whether that be any enemy state or not (or even back to the government). That information would still be of use to an enemy: we just would not know which one.

The view, however, seems to be that there has to be evidence as to the enemy.

That evidence would usually be in the form of a witness statement from an official saying, yes, this is information useful to an enemy.

And if the jury accepts that, and the other elements of the offence are made out, then the jury can convict.

But what happened in this case is set out by the Director of Public Prosecutions – the head of the CPS – in a letter to two parliamentary committees:

It is the legal responsibility of the CPS to independently assess the evidence in every case. That responsibility is an ongoing obligation throughout the life of a case. I am satisfied that the decision to charge this case in April 2024 was correct. This was on the basis of where the law stood at that time in relation to the requirements of the Official Secrets Act 1911. Some weeks later, a High Court decision (R v Roussev and others 2024) ruled that “enemy” for the purposes of the 1911 Act includes a country which represents at the time of the offence, a threat to the national security of the UK.

In the light of this new judgment, it was considered that further evidence should be obtained. Efforts to obtain that evidence were made over many months, but notwithstanding the fact that further witness statements were provided, none of these stated that at the time of the offence China represented a threat to national security, and by late August 2025 it was realised that this evidence would not be forthcoming. When this became apparent, the case could not proceed. This was a professional assessment made by CPS lawyers experienced in prosecuting national security and espionage cases, applying the Code for Crown Prosecutors.

This account superficially makes sense, and it is written in that nod-along way which can be a feature of such letters.

But with a close look what is said here is problematic.

First, note the deft switch from the first person to the passive voice: “I am satisfied that the decision to charge this case in April 2024 was correct. […] it was considered that further evidence should be obtained.”.

Considered by who?

Such a switch in a formal document is usually evasive, and it should put the reader on alert.

Second, the DPP refers to “a High Court decision”.

What he appears to mean is not a High Court decision but a decision of the Court of Appeal on appeal from the Crown Court.

Mixing up such courts is something which is fair enough for a lay person but it is something which is strange in a DPP, especially as generally the High Court deals with civil matters.

Perhaps it is an innocent slip, but it also suggests that the DPP may not be that personally familiar with the case and was reliant in the letter on what someone had told him.

Curiously, in Parliament the security minister in a statement on the case also made the very same slip relying on the DPP letter:

What has changed is the CPS’s assessment of the case law. The DPP has explained that in a separate case—the Crown v. Roussev—the High Court ruled on the threshold for evidence needed to prosecute under the antiquated 1911 legislation.

Is nobody actually looking at the cases on which they are seeking to rely?

Third, and this is the main point: the Court of Appeal decision widens, not narrows, the meaning of the provision.

The President of the King’s Bench Division said in a joint judgment (broken into smaller paragraphs):

In our judgment, the 1911 Act must be construed without reference to the 2023 Act and in a common sense way. This is not a case of applying any “updated construction”: enemy means the same thing now as it did in the years before the First World War.

We agree with the judge that Russia would be “an enemy” if the jury concluded on the evidence that it was a country with whom the UK might some day be at war. However, neither Phillimore J nor the judge was laying down a comprehensive test.

There is no reason in our view why the term “an enemy” should not include a country which represents a current threat to the national security of the UK.

That formulation may well involve issues of fact and degree which the jury would be well-placed to assess, on evidence. As the judge correctly observed, friendly powers would fall outside this definition.

All that the prosecution would need to show with the now-dropped case was that China “was a country with whom the UK might some day be at war”. And it would be for the jury to decide if that were the case.

Note the word “include” by the judge. This means that showing a country “represents a current threat to the national security of the UK” is just one way of showing a country is an enemy for the purpose of the Act.

And as the Court of Appeal says, that “formulation may well involve issues of fact and degree which the jury would be well-placed to assess, on evidence”.

In essence: a wide defintion, and it is for a jury to decide.

This is not just my view.

My fellow legal commentator Joshua Rozenberg, with whom I sometimes disagree on international law-related matters, also is unimpressed:

I am not convinced by this reading of the judgment. It seems to me that the Court of Appeal was saying that threatening the UK’s national security was simply one of the ways of establishing that a state could be an enemy. There could be others. If anything, the Court of Appeal was expanding the definition and making it easier to bring charges.

In any event, there is ample evidence that China was a threat to national security at the time. Writing in March 2023, the prime minister Rishi Sunak said that “China poses an epoch-defining challenge to the type of international order we want to see, both in terms of security and values.”

And the estimable Professor Mark Elliott states in one of his two excellent posts on this case (here and here):

The effect of this judgment is to make it clear that pre-existing case law that said that ‘enemy’ includes ‘a potential enemy with whom we might some day be at war’ as well as states with which the UK is currently at war was not limiting the category of ‘enemies’ to such states. Thus, the Court of Appeal held in Ivanova and Rossev that the category also includes states that represent a ‘current threat to the national security of the UK’. Contrary to some suggestions that have been made, or at least implied, in the media, this does not make prosecuting for this offence more difficult: by making it clear that the definition of ‘enemy’ is a relatively broad one, it makes establishing that aspect of the offence easier.

In other words: if there was sufficient evidence on the “enemy” point for the charges to be brought in the first instance, there should be nothing in the Court of Appeal decision to change the position.

Now let us go back to the DPP letter:

In the light of this new judgment, it was considered that further evidence should be obtained. Efforts to obtain that evidence were made over many months, but notwithstanding the fact that further witness statements were provided, none of these stated that at the time of the offence China represented a threat to national security, and by late August 2025 it was realised that this evidence would not be forthcoming. When this became apparent, the case could not proceed. This was a professional assessment made by CPS lawyers experienced in prosecuting national security and espionage cases, applying the Code for Crown Prosecutors.

So there are two things here to note: the CPS were requesting new evidence and the government was not giving it – or at least not giving what the CPS wanted.

On the basis of the above, it may have been a mistake for the CPS to seek this new evidence.

But, if the CPS was not mistaken, the culpability seems to switch to the government for not providing the requested evidence.

The key sentence is this:

Efforts to obtain that evidence were made over many months, but notwithstanding the fact that further witness statements were provided, none of these stated that at the time of the offence China represented a threat to national security, and by late August 2025 it was realised that this evidence would not be forthcoming.

Now let us go back to the ministerial statement:

The deputy National Security Adviser—a senior official with very extensive experience in matters relating to national security—provided a witness statement in December 2023, under the previous Government. Further witness statements were requested and provided in February and July of this year.

All the evidence provided by the deputy National Security Adviser was based on the law at the time of the offence and the policy position of the Conservative Government at the time of the offence. Every effort was made to provide evidence to support this case within those constraints.

This accords with the DPP letter – further evidence was asked for and witness evidence given.

But it appears that the CPS were insisting that the government witness statement spell out that China was “a threat to national security” and the government refused.

The government then blames “constraints” supposedly set by law “at the time of the offence” and policy “of the Conservative Government at the time of the offence”.

This is a really odd form of words. It is not for an official to self-censor their evidence on their personal understanding of the law. That is not their role to second guess what a court may say the applicable law was or was not. Whoever came up with that part of the ministerial statement does not understand witness statements.

Nor was the witness statement likely to be directly about the policy of a previous government. The offence is not concerned about policy positions. And a government is not bound by what a previous government assessed to be a threat.

In essence: the supposed constraints seem unconvincing.

Like the DPP letter, but separately, the ministerial statement makes no sense.

And although one can just about see why the DPP made a mistake, on a misreading of the Court of Appeal decision, it is perhaps impossible to think of a good reason why the government makes its mistake.

At his blog, Mark Elliott puts the general position very well:

First, there are publications and statements in the public domain (referred to in my previous post on this topic) indicating that the previous government did consider China to be a threat to national security at the relevant time.

Second, the Prime Minister appeared to suggest that the current government was bound by the previous government’s view as to whether China was a national security threat at the relevant time. But there is nothing in 1911 Act or in relevant case law that justifies such a view.

Third, the Prime Minister appeared to suggest that everything turned on whether China had been ‘designated’ as an enemy or national security threat by the previous government at the relevant time. However, the 1911 Act recognises no such concept of designation, criminal liability turning simply on whether the court is in receipt of evidence to the effect that the country in question was a threat to national security at the relevant time.

The more one knows about this case, the more confusing it becomes.

The CPS insists on further evidence it does not require, and the government insists it could not give that evidence, even though it could.

Neither side makes sense, and together they make no sense absolutely.

So either the CPS and the government simultaneously get themselves into an utter muddle on a major espionage prosecution.

And such concurrent cock-ups are conceivable.

Or there is another explanation.

The Kneecap prosecution collapsed because police and prosecutors did not take terrorism law seriously

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.

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:

Hizbollah listed as a terrorist group in a statute

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.

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.

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.

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.

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.

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.

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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