Category: Courts and the administration of justice

Some preliminary thoughts on the Court of Appeal decision on Palestine Action

16th June 2026

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Why it is important to understand how (bad) law is structured

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Yesterday the Court of Appeal handed Palestine Action a heavy defeat, reversing a favourable High Court decision.

The Court of Appeal decision is here.

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This blog does not support Palestine Action or any other proscribed organisation, but this blog often looks at the use and misuse of terrorism and other coercive laws. And on the face of it, it does look like terrorism law is being misused, at least in respect of the mass arrests of people for merely holding signs expressing support for Palestine Action.

For hundreds, if not thousands, of people are facing criminal sanctions for a speech act: according to the judgment 2,000 have been arrested and “there are currently over 700 cases pending in the criminal courts of England and Wales, and many more at the pre-charge stage”. This would appear to be a ludicrous situation and not a use to which one would expect terrorism law to be put.

(Terrorism law is a special body of law, in addition to the general civil and criminal law of the land, which provides the state with powers, rights, and obligations for the particular purpose of dealing with terrorist threats.)

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On a preliminary reading of the judgment, and having watched (in a boon for the public understanding of law) the Court of Appeal’s decision on YouTube (watch here), these are some preliminary thoughts which this blog may develop further in another post.

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First, this decision is more in accordance with the deferent general policy of the courts on national security than the somewhat surprising High Court decision. In essence, Palestine Action were lucky at first instance and it was perhaps unrealistic to expect that luck to hold before the Court of Appeal.

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Second, the fundamental issue is that the restrictions on free expression (for expressing support for a proscribed organisation) is just one of many aspects of proscription. Proscription of an organisation confers on the state a whole range of powers, of which prohibiting expressions of support is just one. So if a proscription is quashed, then the state loses all these other powers.

This means that if a court holds that a proscription has a disproportionate impact on the free expression rights of individuals there is perhaps nothing a court can really do but quash the proscription for other purposes too. A court will be hesitant to do this.

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Third, if a court can somehow decide that free expression rights are not being disproportionately interfered with, it can avoid quashing the proscription. Here the Court of Appeal stated: “That said, however, as a matter of law, the Proscription Decision will not prevent public expressions of support for the Palestinian cause or opposition to Israel and to the Israeli Defence Force, or demonstrations targeted at Elbit.”

And so the Court of Appeal found that the impact on free expression of the proscription was not disproportionate. The problem was avoided.

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And this leads to the fourth point.

The real problem here is that section 12(1A) of the Terrorism Act 2000 (which was only added in 2019) should not be in the Terrorism Act at all.

Section 12(1A) of the Terrorism Act prohibiting support for proscribed organisations.

This prohibition on simply expressing an opinion is, of course, problematic generally.

But if a court quashes a proscription because the effects of the section 12(1A) prohibition is disproportionate then all the proscription powers go too.

A court will then strain, as it seems the Court of Appeal did here, to find that the proscription does not have a disproportionate effect.

From time to time a court, such as the High Court at first instance in this case, will quash such a proscription decision for its disproportionate effects on free expression, but such a quashing order is unlikely to survive appeal.

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Fifth, this appeal decision looks balanced in form (with lots of consideration of opposing factors) but in substance it seems fairly appeal-proof.

(And the current Supreme Court is also not likely to go against the government on national security.)

The Court of Appeal had what was a ‘strong’ bench, with the Chief Justice, the Master of the Rolls, the Vice President of the Court of Appeal Criminal Division, and two other senior appeal judges. Usually an appeal bench is of three judges, but here it is of five, and they were unanimous.

Unless this case goes to Strasbourg then this decision looks like the end of the road.

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And finally, the Court of Appeal in this case made, in passing, some ill-advised historical generalisations about the Suffragettes and other groups.

This historical dabbling will rile anyone with the relevant knowledge of history, and it should have been avoided by the judges, unless it was relevant to a question they had to decide. But to make such points for the purpose of illustration simply made the judges seem historically illiterate. The judges may well come to regret making those points.

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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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How a new court Order means Trump’s slush fund is now in peril

2nd June 2026

The judge has re-opened the supposed ‘settled’ case

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In a significant development the court has now re-opened the litigation which had ended in the supposed ‘settlement’ of a slush fund for President Trump’s political supporters.

You may recall that this blog has previously covered this extraordinary case.

The story so far in essence:

– Trump (and his son and company) brought a largely contrived case against his own government for inflated damages of $10 billion;

– the court rightly doubted that this was an actual dispute between the parties, and so required further submissions on jurisdiction;

– just before the deadline for those submissions, Trump and his co-plaintiffs pulled their claim, leading the court to formally end the case;

– there was then a supposed “settlement” between the parties but without any court recognition which purported to set up a $1.776 billion slush fund and also to grant legal immunity for Trump and others;

– but this ‘settlement’ has been challenged by former Capitol police and also by a group of former federal judges.

Well, the action brought by the group of former federal judges has actually gained some traction.

The judge has now re-opened the case.

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Here is the online docket, and sometimes dockets are a form of poetry.

Online docket showing the case closing and reopening.

You can see on 18 May 2026 the case was closed, and then on 27-29 there was an application and then an Order to re-open the case.

You may recall from an earlier post that the former judges are attacking the ‘settlement’ from the perspective that there was an abuse of process in pulling the case and then purporting to settle it.

The judge now has re-opened the case, and she is now asking for even more submissions from the parties.

re-openedOrder asking for even more submissions from the parties

This places the parties in a far worse position than they were on the eve of the case being pulled. And here there seems to be no way out for the parties by trying to pull and ‘settle’ the case again. They have to come up with the submissions, else presumably the the case will be struck out.

You will see that those challenging the ‘settlement’ can, in turn, make submissions in reply.

This is a huge set-back for the parties setting up this slush-fund on the back of a ‘settlement’. If the case is struck out, there is nothing to settle, and so there cannot be any kind of ‘settlement’.

The rug is being pulled.

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There is so, so much wrong with this case, from every angle. It is like an implausible exam question for law students. This is not what litigation is for and this is not what settlements are for.

But at least now there is a chance for the court to self-correct the excesses of the parties, for if the case is struck out there cannot be a ‘settlement’ – either recognised by the court or otherwise.

Let’s keep watching.

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The two interesting legal challenges to the Trump legal “settlement” slush fund

28th May 2026

How two cases show how a problem can be attacked in two different ways

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This blog has previously covered the extraordinary legal suit brought by Donald Trump against his own government and then the extraordinary supposed “settlement” of that law suit.

That “settlement” purported to use a private agreement (not placed before a court) to establish a high-value fund to benefit political allies of the president – including the insurrectionists who attacked the Capitol.

It looked as if the legal side of the case was over, and it was now a matter for politics.

But the legal side is not over.

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There are (at least) two legal challenges to what has happened, from different perspectives. Both are legally interesting, as they attack the problem from different legal angles.

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One challenge is from two police officers who were at the Capitol during the attempted insurrection.

You can read their challenge here.

The police Plaintiffs are applying for orders and other court relief to quash the establishment of the fund – primarily on the basis that the federal government does not have the legal authority to do what it is purporting to do.

List of the Orders and other relief applied for by the plaintiffs.

This appears to be essentially a public law action against the federal government. It is exactly the right sort of case to bring against public bodies exceeding their powers.

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The other case is far more legally ambitious and imaginative, and it has been brought by a posse of retired federal judges, who are “Movants” (lovely legal word) of a motion for the court itself to re-open the case.

A description of the Movants' case.

This is also exactly the right challenge to bring – but in respect of what appears to have been the abuse of process which led to the supposed “settlement”.

If the Movants succeed then the court will re-open the case and continue with its inquiry into whether there was a real dispute.

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Some abuses of the law are straightforward, and when they occur they usually lend themselves to an obvious remedy.

But the more extraordinary the abuse, the more any remedy has to be especially fashioned.

Here the police Plaintiffs and the federal judge Movants have worked out two different ways to approach the instant situation – one by attacking the outputs (the setting up of the fund), the other attacking the inputs (the way the supposed litigation ended).

I am not an American lawyer, and so I do not know if either case has merit and/or will have traction. But both are interesting ways to get the courts to weigh back in an utter outrage that had looked as if it had escaped the courts.

Trump is suing his own government for $10 billion

May Day, 2026

And he wants to negotiate with his own government for a settlement sum

One thing about fundamental legal principles is that they are rarely expressly feature in litigation – at least not expressly. That is because they are fundamental – they are shared and assumed to apply.

Such principle provide the “rules of the game” and the courts deal with disputes about things the parties do not share in common, like differing views on the facts and on the applicable law in a particular situation.

This is why – at least until fairly recently – constitutional law text books both here and in the United States often did not have many recent cases as precedents or even illustrations of certain fundamental principles. An 1800s case there, a 1700s case here, some vague mention of Magna Carta, and that would be it – for paragraph after paragraph, and chapter after chapter.

But the Brexit-Trump years have changed this. Such is the jolt to the United Kingdom and United States polities that certain hitherto constitutional and legal norms in the background have to the fore. Points which one never expected to be the subject of a practical case now fall for judicial determination.

And in the United States we have a case which goes to the very heart of any litigation system, with the court having to ask “what actually is a dispute?”.

That case, of course, is the one where Donald Trump is suing the United States Treasury and the Internal Revenue Service.

I have written about this case this week over at Prospect – click here.

Although nominally Trump is doing this (with his son and company) in a personal capacity, and not formally as president, the reality is that the president is suing his own administration – for $10 billion.

And so in reality he wants to negotiate, with himself, and to agree, with himself, for a resolution where the suit is compromised for a high amount of money, in the region one suspects of $10 billion.

It is an extraordinary case, even at a time of many extraordinary cases.

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In one way, Trump has a point: he was legally wronged by the Treasury and IRS. His tax returns were unlawfully leaked. And this is the case even if he, like other presidents, should have voluntarily disclosed his tax returns to the public. There has been a prosecution and a conviction of the leaker.

A follow-on civil case is not thereby surprising, for generally (but not universally) when there is a crime there is also a tort.

(That said, there was once an over-confident law lecturer who insisted that there was a tort for every crime and challenged the class to gainsay him, to which one annoying student offered ‘blasphemy’. Sorry.)

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So if Trump has been civilly wronged, he should in principle be able to bring a case for damages.

But what makes this case problematic is that he currently controls both sides of the litigation.

This is because of his position as head of government, and also because of an executive order which prevents any federal body or employee from putting forward a view of law distinct from the president.

All this means that not only is he effectively litigating with himself, he would also be effectively negotiating with himself for settling that litigation.

(A great deal of civil litigation ends in settlement.)

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There is a legal principle so fundamental that it is sometimes described as one of the very rules of natural justice.

This principle is that a person should not be a judge in their own cause.

Here the application of the principle would be that a person should not settle a legal dispute with themselves. Indeed, one can fairly ask if there is a dispute at all in such circumstances.

And that is what the federal judge has asked in this case.

In this fascinating four-page order judge Kathleen Williams goes back to the very first principles of law to ask whether there is actually a dispute here to be determined.

She did not dismiss the case, but she is now seeking legal argument on the point.

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Given there has been a civil wrong to Trump, there is the question of how his private law rights could be enforced against the government while he is a sitting president.

Perhaps the case should be stayed for the duration of his presidency, without prejudice to any limitation period. Or perhaps independent attorneys should be selected to litigate the case on the parties’ behalf, with Trump blind to their litigation decisions, or there could be some binding independent third-party adjudication.

There are various ways his legal position could be reserved or protected so that he is not simply negotiating a settlement with himself.

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When litigation lawyers are trained they are warned about sham litigation cases where for money laundering or other purposes an artificial dispute is contrived and then “settled” for a huge a mount of cash changing hands.

What is happening in the United States is not a sham case: Trump has a claim.

But there are ways and means of bringing a claim, some less artificial than others, and the federal court in the United States now has to work out a way for Trump’s claim to be addressed while avoiding the spectacle of the president negotiating with his own federal employees for a cash payment of up to $10 billion.

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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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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

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

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Terrorism law is important and should be credible

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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

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Comments Policy

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.

More on the comments policy is here.

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

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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.

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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.

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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.

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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.

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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.

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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.

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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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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.

More on the comments policy is here.

1642’s Five Members vs 2026’s Six Members

12th February 2026

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Comparing Charles I and President Trump in their attempts to arrest and charge legislators

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Comments Policy

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.

More on the comments policy is here.

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

22nd November 2025

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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

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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

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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.

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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:

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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.

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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.

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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.

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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.

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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.

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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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