Category: Terrorism

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 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 curious section 3 of the new National Security Act

10th 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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A broad and vague provision may be a cause for concern

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Last week I was asked to write a piece on the arrests of three individuals in respect of Chinese espionage. One of the individuals was noteworthy, partly because they are married to a member of parliament. It was quite a news event and the New Statesman wanted someone to explain the relevant law.

As is my general approach, I did not mention the individuals or comment on the potential merits of any legal aspect of the case. The individuals are presumed to be innocent until proven guilty, and the recent history of espionage arrests indicate that there is a fair chance the cases go no further. The job of the responsible legal commentator in such circumstances is only to set out the applicable law.

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I assumed this would be straightforward: an exposition of section 1 of the new National Security Act 2023, which more-or-less replaced the old (and infamous) section 1 of the Official Secrets Act 1911.

But when I looked at the Metropolitan Police press release (always look at original documents when you can, rather than relying on reportage) I noticed something curious.

The arrests were not under section 1 of the new Act.

The arrests were instead under section 3 of the new Act.

Three people arrested under National Security Act Three people have been arrested as part of a Counter Terrorism Policing investigation into suspected National Security Act offences. The men [A-C] were arrested on Wednesday, 4 March on suspicion of assisting a foreign intelligence service, contrary to section 3 of the National Security Act, 2023. The country to which the investigation relates is China.

With emphasis added:

“Three people arrested under National Security Act

“Three people have been arrested as part of a Counter Terrorism Policing investigation into suspected National Security Act offences.

“The men [A-C] were arrested on Wednesday, 4 March on suspicion of assisting a foreign intelligence service, contrary to section 3 of the National Security Act, 2023. The country to which the investigation relates is China.”

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Section 3 of the new Act is in respect of “Assisting a foreign intelligence service” as opposed to section 1 which is in respect of “Obtaining or disclosing protected information”.

It is a fascinating provision, which you should read in full. In essence it provides for two similarly worded but significantly different offences.

First section 3(1):

“(1) A person commits an offence if the person—

“(a) engages in conduct of any kind, and

“(b) intends that conduct to materially assist a foreign intelligence service in carrying out UK-related activities.”

And then section 3(2) (emphasis added):

“(2) A person commits an offence if the person—

“(a) engages in conduct that is likely to materially assist a foreign intelligence service in carrying out UK-related activities, and

“(b) knows, or having regard to other matters known to them ought reasonably to know, that their conduct is likely to materially assist a foreign intelligence service in carrying out UK-related activities.”

Section 3(3) then provides (emphasis added):

“Conduct that may be likely to materially assist a foreign intelligence service includes providing, or providing access to, information, goods, services or financial benefits (whether directly or indirectly).”

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The section 3(1) offence is an “intention” offence.

If you look carefully, however, you will notice something which is not there. The person does not actually need to communicate anything to the foreign intelligence service. The person merely has to engage in “conduct of any kind” – even if not communicated.

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The section 3(2) offence is not an “intention” offence.

Here, the person does not even need to intend to assist foreign intelligence service. Indeed, the foreign intelligence service may not even be aware of it.

The conduct only needs to be “likely” to assist, regardless of intention.

They do not even need to know they are doing it, but “ought reasonably to know”.

And again there does not need to be any communication with the foreign intelligence service – the foreign intelligence service may not even be aware of it.

On the face of it, the section 3(2) offence would cover a hobbyist following foreign affairs or even a journalist, “indirectly” providing access to information on (say) their website or reportage, even if they do not intend to assist a foreign intelligence agency, but in the opinion of the courts “ought” to have known that it would assist a foreign intelligence agency.

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There are some statutory defences to the section 3(2) offence, listed at section 3(7), but these are strictly limited in scope.

Perhaps there are provisions elsewhere in this complex legislation which mitigate the potential effect of this provision – and if so I will update this page.

Perhaps the the courts will anxiously scrutinise any application of the section 3(2) offence when it impacts upon freedom of expression and the right to share and impart information on matters of topical and public interest.

(Ho ho.)

Perhaps there is nothing to worry about.

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But.

Section 3(2) is a broad and vague provision.

One can see why the government and the security services want a broad “conduct” approach which would capture any imaginative ploy used by the culpable.

But in doing this there is a risk – as elsewhere with terrorism and national security legislation – that the prosecutorial convenience of the government and the security services is at the expense of clarity and free expression rights.

It will be interesting to see how this section 3(2) offence is used in practice.

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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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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.

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

29th September 2025

Where “a technicality” hides a fundamental error

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There is an old chestnut of a phrase: “off on a technicality”.

What this usually means – or at least is usually intended to mean to mean – is that but for some procedural or evidential error, a person would have been found legally liable for a thing.

The term even has its own page at TV Tropes

The wording has become so common, however, that it now can cover the ending of any case, even if it would not be the case that a person would have otherwise have been found guilty or civilly liable. It now just means that a case has come to an end without any substantive finding either way.

It is a journalistic shorthand which can obscure as much as it explains.

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Last week the prosecution collapsed of Liam Og O hAnnaidh (Anglicised as Liam O’Hanna). The defendant is, of course, part of the Irish rap group Kneecap.

And according to the judgment which brought this case to an end:

On 21st November 2024, the Defendant performed as part of the rap group, Kneecap, at the O2 Forum, Kentish Town, in London. It is alleged that, as part of this performance, the Defendant displayed a Hezbollah flag in such a way or in such circumstances as to arouse reasonable suspicion that he is a supporter of a proscribed organisation.

Hezbollah (also known as Hizbollah) is a proscribed terrorist organisation under schedule 2 of the Terrorism Act 2000:

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:

The section 13 offence in the statute

On the face of it it, if the prosecution can show that a defendant wore such a prohibited item the prosecution would be straightforward.

But.

The Terrorism Act – being terrorism legislation – imposes an additional burden on a prosecution when such an offence has been committed for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom.

The Terrorism Act provides that there is a safeguard.

Before a prosecution can be brought the consent of the Attorney General (or his or her deputy the Solicitor General) should be obtained – a consent which should (at least in theory) not be taken for granted.

This is not a trivial tickbox, but an important requirement set by parliament.

For terrorism legislation is special – it provides a powerful body of law in addition to the general criminal and civil law of the land. In principle, it should only be used sparingly and carefully, when the general law of the land is insufficient.

And because terrorism law is so powerful -especially in respect of how it can interfere with fundamental rights – it has these additional safeguards.

One such safeguard is that it not enough for the police and Crown Prosecution Service (CPS) to want to bring a prosecution in respect of a person who is a member or a supporter of a foreign proscribed organisation, it also needs the consent of the government’s most senior law officer.

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Terrorism law is important and it should be taken seriously, not least by the police and CPS.

But in this case, the police and the CPS did not take it seriously.

As Joshua Rozenberg helpfully sets out in his post on this case, the decision to prosecute was left to the very last minute of the six-month period (endind 21 May) to bring a prosecution:

Timeline of prosecution

There was then, on 22 May, what must have been a “oh XXXX” moment for the police and the prosecutors as it seems to have suddenly dawned on them that they needed the consent of the Attorney General (or his/her deputy the Solicitor General).

Whoopsie.

And so there was a scramble.

The police and the prosecutors were more like students with an essay crisis, than custodians of the public interest.

This was Keystone Cops stuff.

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There are errors, and there are errors.

There are technicalities, and there are technicalities.

Some technicalities are about a party not complying with the procedural rules of the court or attempting to put in evidence which is not admissible.

These can be serious errors but they are everyday errors, within the confines of litigation in action.

And then there are errors so fundamental – so basic – that they go to the very ability of a court to even hear a case.

These are jurisdictional errors.

(As Aslan might say, this is the deeper legal magic.)

If a court does not have jurisdiction, it cannot hear a case at all.

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If one looks at the judgment you will see that the judge – the most senior magistrate in England of Wales – is at pains to emphasise that his decision has nothing with the merits of the case:

4. This ruling is not about the defendant’s innocence or guilt rather only whether this court has jurisdiction to hear the case.

5. Therefore, this ruling is confined exclusively to the question of jurisdiction. It concerns whether these proceedings were lawfully instituted within the statutory time limit prescribed by section 127 of the Magistrates’ Courts Act 1980 and, crucially, with the necessary consents as required by S 117 Terrorism Act 2000.

6. It is neither necessary nor appropriate for the Court, at this stage, to engage with the merits of the underlying allegation, or to determine whether the offence is in fact made out from the evidence.

And the Chief Magistrate ruled that the court had not got jurisdiction:

75. Thus, I am satisfied that proceedings against this defendant were instituted on 21st May 2025 when the written charge was issued. At that time, the necessary consent and permission required by law had not been obtained. As such, the proceedings were instituted unlawfully and are null.

76. I therefore hold that the Crown has failed to establish jurisdiction. The proceedings instituted in this case are invalid and the Court has no jurisdiction to hear them.

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A jurisdictional challenge is not easy in any area of law. To bring such a challenge means telling the court they cannot even hear the case. These are often “brave” submissions.

And so it is no surprise that the defendant in this case instructed not one, not two, but three King’s Counsel, as well as a junior barrister:

List of three KCs

Such a challenge would require resources not normally available to a defendant.

One wonders how many cases where there has been no jurisdiction have been brought where the defendant could have challenged jurisdiction but did not have the awareness or the means to do so.

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Some cynics have opined that this was a convenient way for the British state to get rid of what may have been an embarrassing case.

Not so here.

The judgment shows that the prosecutors worked hard – indeed were desperate – to get the judge to accept jurisdiction, and indeed they also knocked out the alternative basis for jurisdictional challenge.

This is actually a highly inconvenient ruling for the prosecutors, meaning they can no longer get by with retrospective consents.

They really will not like this.

Indeed, as Joshua Rozenberg reports at his post, an appeal by case stated is being seriously considered by disappointed prosecutors.

We can bet it is.

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At the bottom of this mess is a simple point: the police and the prosecutors were careless with terrorism law and careless about its express safeguards.

Things were left to the last minute and a consent (which may or may not have been given) – a step imposed by parliament as a crucial step – was not obtained.

And this mishap meant that the Chief Magistrate of England and Wales had no jurisdiction to hear what was on the face of it a terrorism case.

Police and the prosecutors should remember that this is terrorism law that they are dealing with.

Terrorism law should be taken seriously.

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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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The proscription of Palestine Action as a case study of terrorism law

21st September 2025

Why is the general criminal law not sufficient to deal with direct action groups?

Over at Prospect I have done a couple of posts about the proscription of Palestine Action. My latest post is here, which is based on a close reading of the disclosed MI5 assessment.

Writing about this is not because I have a particular interest in or knowledge of Palestine. Like many I support the ultimate goal of a two-state solution and the need for an immediate ceasefire in Gaza, but this is not a foreign policy blog.

For this blog the proscription of Palestine Action is of interest because of what it tells us about terrorism law (and constitutional law) of the United Kingdom. It is an important case study of how terrorism law can perhaps over-reach.

By way of background, terrorism law is a distinct body of law that provides legal powers and privileges to the state in addition to the general criminal and civil law of the land.

In essence: terrorism law is there for when the general criminal and civil law is not sufficient for dealing with certain situations.

Before 2000 terrorism law was special and explicitly temporary:

And it was on this special and temporary basis that the United Kingdom government dealt with the biggest terrorism threat of modern times: that which arose from the ‘Troubles’ in Northern Ireland.

But in 2000 this changed and terrorism law was placed on a permanent basis with a Terrorism Act.

And since then there were many other Acts:

One might think from their titles that the “Anti-terrorism” and “Counter Terrorism” Acts would cancel out the “Terrorism” Acts, leaving us with a balance of one or two.

But no, they are cumulative.

And the legislation has effectively created a security state within a state. There have also been statutes dealing with government surveillance and so on.

Terrorism law is now vast and complex, but it also can be rigid and clumsy.

And applying it to what can be better called a “direct action” group was perhaps not a wise move.

Because when a group is proscribed it has all sorts of other legal effects – including, since 2019, the criminalising of even expressing a supportive opinion.

And this is why we have ended up with what seems an absurd spectacle of mass arrests under terrorism law for people expressing opinions in support of a direct action group, while the actual organisers of the said direct actions are being dealt with primarily under general criminal law.

It even seems the police do not know what to actually do with their mass arrestees, with accounts of extended bail periods instead of any charging decisions.

The proscription is under legal challenge, and one gets a sense from the outside that the government fear that the proscription may be quashed in part or in full. We, of course, do not have the “closed” material which only a court can see, but the “open” material is flimsy stuff. The government is certainly trying to head the case off without a substantive hearing.

And it is difficult to see how it can be proportionate to criminalise hundreds of people for expressing an opinion in support of a direct action group which even MI5 admit is mainly engaged in conduct that is not terrorism. It is also hard to see what useful is added to the general criminal law by proscription in dealing with direct action activists.

That said, the courts are generally deferent to the executive and will usually regard the Home Secretary as being better placed than a judge in assessing national security measures. On balance the proscription is likely to survive legal challenge.

But as a worked example of terrorism law in practice this proscription may have the unwelcome effect of discrediting terrorism law, and that would not be a sensible or welcome outcome.

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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.

The assessment of Palestine Action as being involved in terrorism

18th September 2025

The New York Times has published MI5’s “open” assessment

The New York Times has published this informative and instructive document.

It appears to be a version of the MI5 Joint Terrorism Analysis Centre (JTAC) assessment of whether Palestine Action commits, participates in and prepares for terrorism.

As it says, the purpose of the document is to:

assess whether Palestine Action is concerned in terrorism, in relation to the statutory tests and discretionary factors for proscription.

It is not, however, the actual assessment. For as the document states:

THIS IS AN OPEN VERSION OF A CLOSED DOCUMENT. THIS IS NOT THE ORIGINAL DOCUMENT, AND IS A GISTED VERSION OF THE ORIGINAL DOCUMENT WITH SENSITIVE MATERIAL REMOVED OR GISTED.

Presumably the “closed” document is that being relied upon by the United Kingdom government in the current litigation regarding the proscription of Palestine Action, and this is the “open” version which the public (and the claimants) are allowed to see.

This “open”/”closed” distinction is important, as the judicial decisions in the legal case will not necessarily be based on this “open” version. The court may base its decision on material not in the public domain and excised from this “open” document.

That said, the document is still worth looking at carefully, for what it tells us about how terrorism law works in the United Kingdom.

This blog may return to this document in due course.

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How the criminal justice system deals with a riot

5th August 2024

Thirteen years ago, I went along to the south London shopping centre expecting to report on a riot. But there was not a riot.