Court of Appeal upholds Palestine Action proscription – an extended look

16 June 2026 by Jonathan Metzer

Secretary of State for the Home Department v R (Ammori) [2026] EWCA Civ 721

A Court of Appeal panel of five Judges, including the Lady Chief Justice, Lady Carr LCJ, the Master of the Rolls, Sir Geoffrey Vos, the Vice President of the Court of Appeal (Criminal Division), Edis LJ, and Lewis and Whipple LJJ has overturned the Divisional Court’s decision quashing the proscription of Palestine Action, holding that it erred in its approach both to the challenge brought under the Home Secretary’s relevant policy and to whether a fair balance had been struck with reference to the rights to freedom of expression and freedom of assembly and association under Articles 10 and 11 of the European Convention on Human Rights.

This article takes an extended look at the reasoning in this decision.

Background

In July 2025 Palestine Action was proscribed under Schedule 2 of the Terrorism Act 2000. This made it an offence to belong to it, invite support for it, arrange a meeting to support it or further its activities, wear clothing or display in public any article that would arouse reasonable suspicion that the person is a member or supporter of it, or fundraise for it (see ss. 11 to 17 of the Terrorism Act 2000). The Divisional Court held that the proscription should be quashed on the basis of a failure to follow a relevant policy and the European Convention, as discussed on this Blog here. The Home Secretary appealed.

Failure to follow relevant policy

The relevant Proscription Policy included the following (see para 75):

In considering whether to exercise this discretion [to proscribe], the Home Secretary will take into account other factors including:

• The nature and scale of the organisation’s activities
• The specific threat that it poses to the UK
• The specific threat that it poses to British Nationals overseas
• The extent of the organisation’s presence in the UK
• The need to support other members of the International community in the global fight against terrorism.

When considering this Policy, the Court agreed with the Home Secretary’s case that the purpose of the Proscription Policy was “to render transparent some of the non-exhaustive factors that will be considered”, stating that there was nothing in its wording to indicate that its purpose was to limit or constrain the factors to be considered, and that, on the contrary, “the list of factors is expressly non-exhaustive” (at para 83).

Further, the Court held that “operational consequences are concerned with the efficacy of proscription”, which was “a highly material factor to be placed in the scales of the balancing exercise on proportionality”. Therefore, even if the Divisional Court had been right to hold that the purpose of the policy was to limit the discretionary power to proscribe, “that would not have prevented the Home Secretary from legitimately considering operational consequences as a relevant factor”(at paras 86-87).

The Court concluded as follows:

Accordingly, in our judgment, the purpose of the Proscription Policy was not to limit or constrain the discretion of the Home Secretary. The other factors that the Home Secretary was entitled to take into account included the operational benefits of proscription in the particular case that she was considering. The Divisional Court was wrong to consider otherwise, and adopted an excessively analytical approach to the interpretation of the Proscription Policy. (at para 88)

Further, the Court stated that the Divisional Court was wrong to interpret the Policy as only permitting activities amounting to terrorism as being permissible for the Home Secretary to consider when deciding whether to proscribe under the Policy:

[…] The short point is that, whilst the purpose of proscription is to prevent acts of terrorism, in deciding whether to proscribe the Home Secretary must assess the risk of future acts of terrorism. All of an organisation’s activities, such as recruitment, fundraising, radicalisation and all terrorist and non-terrorist activities may be relevant to that assessment. (at para 89)

The European Convention

The Court first underlined the importance of the national security context in which the decision had been made, stating that the Home Secretary had “special constitutional responsibilities and institutional competence when it comes to questions of national security” (at para 107).

In this regard, contrary to submissions made on behalf of Amnesty International and Liberty, this principle was “unaffected” by the level of parliamentary scrutiny that may have been applied to the decision to proscribe, as the deference was to the executive, particularly in circumstances where the relevant powers have been delegated to the Home Secretary by primary legislation (at para 108). Further, contrary to submissions made on behalf of the United Nations Special Rapporteur of the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, there was “no compelling evidence” to show that there was a consensus among signatory states to the Council of Europe against proscription in the circumstances of this case (at para 113).

The Court also stated “the assessment of future risk in the context of national security is pre-eminently a question of specialist evaluation and judgment for the executive”, involving consideration of a broad range of facts and events and often taking into account expert reports (at para 115, citing Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] 3 WLR 346, Rehman v Secretary of State for the Home Department [2001] 1 AC 153 and U3 v Secretary of State for the Home Department [2025] AC 1510).

On this basis, the Court held that:

The Home Secretary is thus better placed than the court to adjudicate the balance of the various rights and interests engaged in the context of national security.  Whilst the court remains the ultimate arbiter, the Home Secretary should be accorded a wide margin of appreciation (or respect) in making her judgment about whether the objectives of the Proscription Decision are sufficiently important to justify the limitation of fundamental rights, whether there is a rational connection between the Proscription Decision and those objectives, whether a less intrusive measure could have been used, and whether a fair balance has been struck between the relevant ECHR rights of the individuals and others affected and the interests of the community, in so far as the balancing exercise involves bringing the public interest factors relied on by the Home Secretary into account. (at para 116)

Having set this out, the Court held that the Divisional Court addressed the question of latitude to the Home Secretary “only very briefly”, it “materially” understated the position (when it stated the Court must permit “some latitude” to the Home Secretary “given that she has both political and practical responsibility to secure public safety”), and it was “not clear from the judgment of the Divisional Court when and how even that limited degree of latitude was afforded” (at para 117).

The Court then turned to the application of the tests under Bank Mellat v HM Treasury (No 2) [2014] AC 700. Under the first two tests, the Court held that both the protection of the rights and freedoms of others and the interests of national security were sufficiently important objectives to justify the limitation of Article 10 and Article 11 rights in some circumstances (at paras 119-120), and the Proscription Decision was obviously rationally connected to the legitimate objectives of protecting the rights and freedoms of others and protecting national security (at para 121).

As to the third test, the Court considered in detail each of the putative less intrusive measures put forward by the Claimant, but held it was “unable to identify any appropriate less intrusive measure to which the Home Secretary should have resorted as an alternative to proscription” (at para 137), particularly where:

1. Civil remedies were unsatisfactory, as “such remedies would not be sought by the Home Secretary” and she would “at best, have been able to encourage potential corporate objects of Palestine Action’s activities to litigate themselves”. This had been rejected as an appropriate lesser alternative approach by the Divisional Court and, in any event, “the Home Secretary cannot be expected to abrogate her undoubted powers of proscription in the face of terrorist activity on the basis that she could, instead, promote civil self-help remedies for private parties to pursue (at their own risk and cost)” (at para 128).
2. Measures such as asset-freezing, serious crime prevention orders and criminal behaviour orders “would not achieve the collective impact of an order for proscription, namely facilitating the disruption and deconstruction of Palestine Action as a network” and so “such measures would not meet the objectives of the Proscription Decision, which were to protect the rights and freedoms of others and protect national security” (at para 129)
3. As to ordinary prosecutions under the criminal law outside the Terrorism Act 2000: (i) “[l]eaving an organisation in a position to commit those crimes, knowing that it may prove possible to detect and prosecute the individuals concerned afterwards, is not likely to be an acceptable approach in a case where the organisation is concerned in terrorism” (at para 133); (ii) prosecutions “will not directly disrupt the organisation itself”, and proscription “directly attacks both the covert and the overt activity in a way that the ordinary criminal law may not” (at paras 134-135); and (iii) the exercise of criminal investigatory powers required “not only legal but also operational justification”, depended on “skill, judgment, resources and, sometimes, fortune”, and sometimes a plan to commit a crime “can be concealed successfully such that there is no basis for conducting any investigation of this sort at all” (at para 136).

As to the fourth test, the Court stated that the premise of the Claimant’s submissions, that Palestine Action was “a non-violent “direct action protest group”” was “seriously flawed”: the Divisional Court had rejected the same submission, the Home Secretary had emphasised sentencing remarks that referred to “panic among staff who feared for their safety as pyrotechnics and smoke bombs were thrown in the area they were evacuating” during Palestine Action’s attack against the Thales defence factory in Glasgow in 2022, and “none of the three terrorist incidents at Glasgow, Kent and Bristol has been disowned or condemned by Palestine Action” (at para 150).

The Court emphasised “the importance of the rights of law-abiding individuals to freedom of speech and freedom of assembly under Articles 10 and 11”. It also stated that it had to take into account the fact that the cohort of people whose Articles 10 and 11 rights weighed in the balanced included “those persons who wish to express pro-Palestinian views, but who may be dissuaded from doing so because of the Proscription Decision, either for fear of committing an offence under the 2000 Act or because of a genuine misunderstanding about what is lawful and what is not”, which was likely to be a group that was “significant in number”, and that, as such, there were many people who may be subjected to a “chilling effect” in respect of making their strongly-held anti-Israel and pro-Palestinian views public for fear of their actions being construed as support for Palestine Action (at para 153).

The Court also took into account as factors weighing in the balance against proscription the limited number of terrorist incidents perpetrated by Palestine Action as compared to other activities, the submission that proscription may be regarded by some as too heavy-handed, and the fact that most organisations that are proscribed or considered for proscription do advocate violence against people as their primary motivation, so it was unusual to proscribe an organisation whose primary objective was damage to property (at para 155).

However, the Court noted that it weighed against the Claimant’s case that it had rejected the submissions that less intrusive measures might have been used to disrupt or deconstruct the activities of Palestine Action (at para 156).

Further, the Court held that there were other factors that weighed in favour of proscription, including the following:

1. Palestine Action was not a transparent non-violent direct action protest group as it claimed, but “a covert organisation that has revealed little about itself in these proceedings”, whose “activities are planned and undertaken secretly with the objective of avoiding detection”, as indicated by the content of its Underground Manual which was exhibited as an annex to the judgment, and its whole premise was “to cause damage to property belonging to Elbit and other companies trading lawfully in the United Kingdom” (at paras 160-163).
2. The future threats and risks posed to third party individuals and property by Palestine Action were “perhaps the most important factors to weigh in the balance”, and the Home Secretary was in the best position to assess these based on expert advice (at para 164). In this regard, Palestine Action took “direct criminal action against businesses and institutions, including key national infrastructure and defence firms that provide services and supplies to support Ukraine, NATO, the “Five Eyes” allies and the UK defence enterprise” (at para 165). Further, the cross-departmental Proscription Review Group (PRG) had concluded that Palestine Action was “responsible for an escalatory campaign of direct action across the UK that [had] crossed the threshold into terrorism” and the Joint Terrorism Analysis Centre (JTAC) had made an assessment that over the coming 12 months Palestine Action would “conduct further activity constituting serious property damage in an act of terrorism”  (at paras 166-167). Moreover, Palestine Action’s Underground Manual, which encouraged cell members to “think big” and “to carry and use lethal weapons such as sledgehammers”, and the incident in which violence and weapons were used against security staff and responding police officers at Elbit’s premises in Bristol contradicted the submission that Palestine Action was a transparent non-violent civil disobedience protest group (at para 168). In this regard, the “escalating trajectory” of the seriousness of Palestine Action’s activities was “an important feature”, with reference to the Home Secretary’s responsibility to protect the public (at para 169).
3. It would be “obviously inherently problematic to degrade and disrupt the funding of a secretive cell-based organisation without proscription” (at para 172).

Further, the Court stated that

In considering the impact of the proscription of Palestine Action, it is important to recall that proscription does not prevent expressions of support for Palestine or expressions of opposition to Israel or Zionism. As emphasised in ABJ at [61], there is a distinction between (the expression of) an opinion or belief which is supportive of the objectives of an organisation (such as closing down Elbit, for example) and (the expression of) an opinion or belief which is supportive of the organisation itself. Proscription only prevents the expression of opinion or belief which is supportive of an organisation involved in terrorist activity. Thus, the core or essence of the rights to freedom of (lawful) expression and assembly can be said to be untouched. (at para 173)

The Court concluded as follows (at paras 204-207):

We recognise that the proscription of an organisation like Palestine Action is highly controversial. We recognise too that Palestine Action is supported by many otherwise law-abiding citizens, and that it is engaged in peaceful as well as non-peaceful protest.

It is, nonetheless, a fundamental mistake to overlook the fact that Palestine Action overtly promotes unlawful violence amounting to terrorism. It is not, as it claims, a direct action civil disobedience protest group like the suffragettes operating transparently in the open. It is a covert organisation that operates using secret cells to avoid the detection and prosecution of those using violence to destroy the property of third parties. Palestine Action’s activities have caused injury as well as property damage.

As the Divisional Court commented at [J137], at no stage has Palestine Action suggested that its terrorist activities were either a mistake or an aberration.  Rather, Palestine Action has lauded those who took part. The contents of the Underground Manual provide good evidence of Palestine Action’s continuing intention to promote the use of violence regardless of the risk that this will result in serious damage to property or serious violence against members of the public.

Ultimately, we have had to balance the free speech and freedom of assembly rights of individuals against the rights of third parties and the national security of the communities of the United Kingdom. We have done so by applying well-established legal principles, allowing the appropriate latitude to the decision that Parliament entrusted the Home Secretary to make. The Home Secretary had both the institutional competence and the democratic accountability to make that decision.

Comment

As I suggested might prove to be the case in my post on the Divisional Court’s decision, the Court of Appeal has overturned the Divisional Court’s decision.

I think that this decision was driven in significant part by three factors.

First, the importance of affording a significant margin of discretion to the executive when evaluating a decision made in the context of national security, in light of the particular role and responsibilities of the executive in our democratic system, and its competence in this area.

Secondly, the character of Palestine Action itself. For the reasons set out in detail in the Court of Appeal’s judgment (and in the Divisional Court’s judgment), Palestine Action was found not to be a protest group in the tradition of civil disobedience, despite what the Claimant said.

Thirdly, the specific impact that proscription is likely to have on the rights of individuals to freedom of expression and freedom of association and assembly. The Court pointed out that the proscription of Palestine Action would not prevent expressions of support for Palestine, expressions of opposition to Israel and the Israel Defence Force or demonstrations targeted at Elbit. Therefore, whilst it was recognised that proscription would have significant impact on the rights of individuals, this impact was not as great as the Claimant said it would be.

The Claimant has stated that she intends to appeal further to the Supreme Court. It remains to be seen whether permission will be granted.

Jonathan Metzer is a barrister at 1 Crown Office Row.

Natasha Barnes of 1 Crown Office Row was involved in this case at an earlier stage. She was not involved in the writing of this post.