Ammori (Claimant/Respondent) v Secretary of State for the Home Department (Appellant/Defendant)

[00:00:06]persons having anything to do before my ladies and lords draw near and give your attendance.

[00:00:18]This is a judgment being handed down in a matter of We hand down the open judgment of the court in writing this morning. Copies of the open judgment along with a press summary will be made available at the conclusion of this oral summary of our conclusions. The open judgment will be placed on the national archives in the normal way bearing neutral case citation number 2026 EWCA civ 1721.

[00:01:04]We also hand down separately in writing a closed judgment of the court. This oral summary along with the press summary is designed to assist the parties and the public in understanding our decisions. They do not form any part of our decisions including our reasoning which are conta contained exclusively in our written judgments.

[00:01:30]The claimant uh Miss Huda Amorei is one of two co-founders of a group operating in the United Kingdom and elsewhere known as Palestine Action.

[00:01:42]Mr. Mori challenged uh the decision of the home secretary uh to prescribe Palestine Action as a terrorist organization under section three and schedule two of the terrorism act 2000.

[00:01:58]The prescription decision was announced to parliament on the 23rd of June 2025 and the implementing order came into effect after approval by positive resolutions of both houses of parliament on the 5th of July 2025.

[00:02:16]Msorei challenged the prescription decision on many grounds. The divisional court decided in her favor on two.

[00:02:24]First, the divisional court held that the home secretary's approach to the other factors that might be considered under her policy paper dated the 27th of February 2025 had not been consistent with the policy.

[00:02:41]In essence, the home secretary had taken into account the fact that prescription provided additional levers to disrupt Palestine actions operations, which the divisional court held was not a permissible consideration on its interpretation of the prescription policy. The divisional court decided that the purpose of the prescription policy was to limit and constrain the use of the discretion to prescribe.

[00:03:12]The second decision in Mr. Mory's favor related to the fair balance that had to be struck between the rights of individuals here, free speech under article 10 and freedom of assembly under article 11 of the European convention of human rights and the rights of the community here national security and the protection of the rights of others under articles 102 and 112 of the convention.

[00:03:42]The divisional court applied the well-known four- stage test of proportionality in a leading authority known for short as bank melat. The divisional court concluded that the nature and scale of Palestine actions activities so far as they comprised acts of terrorism had not yet reached the level, scale and persistence that would justify the application of the criminal law measures that are the consequences of prescription and the very significant interference with convention rights consequent upon those measures.

[00:04:21]The home secretary appeals these decisions on two main grounds. First, she contends that the divisional court wrongly interpreted the prescription policy as preventing the home secretary from taking into account the intended and beneficial disruptive effects of the prescription regime when considering whether to apply that regime to Palestine action.

[00:04:48]Secondly, the home secretary contends that the divisional court was wrong to strike the fair balance required under the fourth stage of the bank melat test against the prescription of Palestine action. She argued that the divisional court failed to accord the home secretary the proper degree of margin in a context in which the protection of national security and of the public from terrorism was central and the matters under consideration were particularly apt for judgment by the home secretary.

[00:05:25]The appeal raises points of general public importance concerning the use of the power to prescribe under section three of the terrorism act 2000.

[00:05:36]It engages the respective constitutional responsibilities and institutional competencies of the courts and the executive.

[00:05:46]Further, many individuals have been arrested and or charged for terrorism offenses in respect of Palestine action.

[00:05:55]There are currently at least over 700 cases pending in the criminal courts of England and Wales and many more at the pre-charge stage.

[00:06:06]We summarize our reasoning on the main points of the appeal, starting with the facts.

[00:06:14]Like the divisional court, we found the content of Palestine Actions underground manual to be revealing.

[00:06:21]The evidence from or on behalf of Ms. Amorei provided surprisingly little information about Palestine Action. The extent and nature of Palestine Actions membership and organization were largely unexplained.

[00:06:36]Although it was unlikely that an organization committed to achieving an objective through direct action would do nothing to direct that action to its best effect and would have no structure to promote and guide its direct action.

[00:06:53]This lack of information was intentional and consistent with the image of a covert organization that is cultivated in the underground manual.

[00:07:05]As set out in the underground manual, Palestine action operates through cells of trusted people. The underground manual emphasized the importance of covert action. The use of security precautions when communicating between members was encouraged so as to avoid detection. There was advice on how to avoid being identified or arrested and how to destroy incriminating material.

[00:07:33]There was advice on quote smashing stuff dot dot dot with an efficient sledgehammer in your hand end quote as something that was very quick and could cause quite a bit of damage.

[00:07:47]The main target of Palestine Actions activities in the United Kingdom was Elbit Systems UK Limited, but its activities were also directed at any other company or organization considered by Palestine Action to enable Elbit's business in the United Kingdom.

[00:08:08]Palestine action had a wide range of targets with criminal activities undertaken with no suggestion of restraint or proportionality.

[00:08:19]This is again reflected in the wording of the underground manual which encouraged readers to be creative and to disrupt, damage or destroy targets without restraint.

[00:08:32]Three incidents had been assessed to have resulted in serious damage to property amounting to terrorist action within the meaning of the terrorism act 2000.

[00:08:43]One in 2022 and two in 2024.

[00:08:49]The divisional court found that these three incidents could not safely be regarded as outliers in terms of Palestine actions activities either as to scale or extent. The divisional court was clear that Palestine Action could not properly be portrayed as a nonviolent organization.

[00:09:11]It was not accurate to describe it as an ordinary protest group engaged in activities falling within the wellestablished tradition of peaceful protest.

[00:09:24]We have agreed that Palestine Action was an organization engaged in causing serious damage to property using weapons including sledgehammers.

[00:09:36]It presented a very real risk of injury not only to property but also to members of the public. Its campaign was intended to close down the operations of a company pursuing a lawful business. The campaign was not pursued with restraint.

[00:09:55]The wide range of targets is significant designed to intimidate the persons and businesses targeted to end their relationships with Elbbit.

[00:10:05]It operated covertly to prevent its operations being known or perpetrators being apprehended.

[00:10:13]It was not engaged in any exercise of persuasion or at least not the type of persuasion consistent with democratic values and the rule of law.

[00:10:26]In reaching the prescription decision, the home secretary had the benefit of advice from a cross departmental prescription review group. Amongst other things, the prescription review group received a report from the joint terrorism analysis center and counterterrorism policing.

[00:10:47]The prescription review group concluded that Palestine action committed or participated in acts of terrorism, prepared for terrorism, and promoted or encouraged terrorism.

[00:11:02]The prescription review group considered the exercise of discretion to prescribe, including additional discretionary factors beyond those identified specifically in the prescription policy.

[00:11:16]It concluded unanimously that the discretionary considerations weighed in favor of prescription.

[00:11:24]The prescription review group's recommendation was taken up in a written submission to the home secretary dated the 26th of March 2025.

[00:11:35]A further submission to the Home Secretary dated the 2nd of April 2025 noted that Palestine actions activity had escalated in seriousness in the previous 18 months.

[00:11:50]On the 14th of May 2025, it was recorded that the Home Secretary had accepted the recommendation to prescribe Palestine action and wanted to proceed as soon as possible.

[00:12:04]The process was however paused for further information which was provided in a further submission dated the 4th of June 2025.

[00:12:15]That submission reported that since August 2024, Palestine Action had been responsible for 158 direct action events, 28 of which had caused significant damage to property.

[00:12:31]159 arrests had been made. Reference was made to coordinated direct action.

[00:12:38]The further submission repeated the prescription review group's unanimous agreement that Palestine action was currently concerned in terrorism. It also repeated that as set out in the advice of the 26th of March 2025, prescription would provide significant benefits to operational partners working to disrupt Palestine Actions activity.

[00:13:07]On the 20th of June 2025, shortly after an incident earlier in the day when Palestine Action activists broke into RAF Bri Norton and damaged two military planes with spray paint, the Home Secretary confirmed her decision to procribe Palestine action, making her written statement to the House of Commons three days later.

[00:13:33]The Bri Norton incident, whether a terrorist incident or not, clearly played a material part in triggering the Home Secretary's ultimate decision to proceed with prescription at the time when she did and in the terms that she did.

[00:13:51]There has never been a challenge to the Home Secretary's assessment that Palestine Action was an organization concerned in terrorism for the purposes of her power to prescribe under section three of the Terrorism Act 2000.

[00:14:09]The policy ground.

[00:14:12]On the policy ground, we have concluded that the purpose of the prescription policy was to render transparent some of the non-exhaustive factors that the home secretary would consider. The prescription policy is broadly framed.

[00:14:29]Nothing in its wording indicates that its purpose is to limit or constrain the factors to be considered. On the contrary, the list of factors is expressly non-exhaustive.

[00:14:43]Further, even if contrary to our view, the divisional court were right to hold that the purpose of the prescription policy was to limit the home secretar's discretionary power to prescribe. That would not have prevented the home secretary from legitimately considering operational consequences as a relevant factor. Accordingly, in our judgment, the purpose of the prescription 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 prescription 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 prescription policy.

[00:15:41]Further in this regard, the divisional court was wrong to interpret the term activities in the first listed factor in the prescription policy, namely the nature and scale of the organization's activities as meaning activities amounting to terrorism within the meaning of section one of the terrorism act 2000.

[00:16:06]We have therefore allowed the appeal on the policy ground.

[00:16:12]Proportionality.

[00:16:14]In this section, we refer to article numbers from the European Convention on Human Rights.

[00:16:22]We rejected the Home Secretaries appeal against the divisional court's refusal to hold that article 17 prevented articles 10 and 11 being engaged at all.

[00:16:35]And we turn then to the question of proportionality undertaking our own fresh assessment.

[00:16:43]Article 10 prevents the right uh protects the right of free speech and article 11 protects freedom of assembly.

[00:16:53]We undertook that fresh assessment of the proportionality of the home secretar's decision to prescribe Palestine action. First because Supreme Court authority required us to do so in a case of this significance and secondly because the divisional court had made its assessment on the wrong basis.

[00:17:16]Our task was not to take over the function of the primary decision maker.

[00:17:21]The prescription decision lies in the area of national security which before the human rights act 1998 would have been regarded as unsuitable for judicial scrutiny at all. Whilst we were not bound by the home secretary's decision on proportionality, we must have regard to and may afford an appropriate measure of respect to the balance of rights and interests struck by the home secretary.

[00:17:53]The measure of respect to be accorded by the court to the views of the executive or the legislature depends on the importance of the right, the degree of interference with that right and the extent to which the courts are more or less well placed to adjudicate the balance of the various rights and interests engaged on grounds of relative institutional expertise and democratic accountability.

[00:18:22]The court is required to attach special weight to the judgments and assessments of a primary decision maker with special institutional competence.

[00:18:33]The home secretary has special constitutional responsibilities and institutional competence when it comes to questions of national security.

[00:18:44]It is well established that issues of national security are central to the constitutional responsibilities of government. It is the executive government represented by relevant ministers which has the democratic authority to take decisions in relation to national security because it is important that those doing so should be responsible to the [clears throat] public for their effective protection.

[00:19:11]Equally, the assessment of future risk in the context of national security is preeminently a question of specialist evaluation and a judgment for the executive.

[00:19:24]Such assessments involve consideration of a broad range of facts and events and often take account of expert reports based on a range of information, some of which may be secret.

[00:19:38]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.

[00:19:51]Whilst the court therefore remains the ultimate arbiter, the home secretary should be accorded a wide margin of appreciation or respect in making her judgment.

[00:20:04]In this case, the divisional court addressed the question of latitude to the home secretary only very briefly, stating that when striking the balance, the court must permit some latitude to the home secretary given that she has both political and practical responsibility to secure public safety.

[00:20:27]This materially understated the position and it is not clear from the judgment of the divisional court when and how even that limited degree of latitude was afforded.

[00:20:42]Further in the light of our conclusions on the policy ground and unlike the divisional court we are assessing proportionality one on the basis of an otherwise lawful decision by the home secretary. two on the basis that the nature and scale of Palestine actions activities as a whole not just its acts of terrorism are relevant and three on the basis that it is open to us to consider the operational benefits of prescription adopting this approach and against this background we turned to the application of the four stage bank melat test.

[00:21:28]We concluded in relation to the first three of those four tests that the objectives of the prescription decision were sufficiently important to justify the limitation of fundamental rights.

[00:21:43]that the prescription decision was rationally connected to these objectives and that there were no appropriate less intrusive measures to which the home secretary should have resorted as an alternative to prescription.

[00:22:00]We then turned to our fair balance assessment in terms of the basic parameters of the balancing exercise. We emphasize the importance of the right to freedom of expression and that civil disobedience has a long and honorable history in this country.

[00:22:21]One of the fundamental questions for our fresh fair balance exercise related to the nature of the Palestine Action Organization.

[00:22:31]Palestine Action characterized itself as a nonviolent direct action protest group following in the footsteps of the suffragettes and the campaigns against apartheid and the Iraq war. In our judgment, that premise was seriously flawed. It was not a sustainable proposition to portray Palestine Action as a nonviolent organization and not accurate for Mr. my to paint Palestine Action as an ordinary protest group engaged in activities falling within the wellestablished tradition of peaceful protest.

[00:23:11]The sentencing sheriff's remarks about one of the three terrorist incidents for which Palestine Action was responsible referred to the panic among staff who feared for their safety as pyrochnics and smoke bombs were thrown into the area that they were evacuating.

[00:23:30]Further, none of the three terrorist incidents have been disowned or condemned by Palestine action. Against that background, we turned to consider the factors weighing in the proportionality balance.

[00:23:48]Factors weighing in the balance against prescription.

[00:23:53]We again emphasize the importance of the rights of lawabiding individuals to freedom of speech and freedom of assembly under articles 10 and 11.

[00:24:05]The prescription decision entailed a very significant interference with convention rights under both articles 10 and 11 which should be neither overlooked nor understated.

[00:24:19]We highlighted, however, that prescription does not prevent continue expressions of support through peaceful protest in support of the Palestinian cause or in opposition to actions undertaken in Gaza by the government of Israel and or the Israeli Defense Forces.

[00:24:41]Nor does prescription prevent demonstrations targeted at Elbbit, for example.

[00:24:47]There is a distinction between the expression of an opinion or belief which is supportive of the objectives of an organization such as closing down Elbat for example and the expression of an opinion or belief which is supportive of the organization itself.

[00:25:07]prescription only prevents the expression of opinion or belief which is supportive of an organization involved in terrorist activity.

[00:25:18]So it is important to understand the cohort of people whose article 10 and 11 rights weigh in the balance. It includes those persons who wish to express pro-Palestinian views, but who may be dissuaded from doing so because of the prescription decision, either for fear of committing an offense under the Terrorism Act 2000 or because of a genuine misunderstanding about what is lawful and what is not. This group of people is likely to be significant in number.

[00:25:55]It is one thing for people voluntarily to hold up a placard supporting Palestinian Palestine action which they know to be a prescribed organization.

[00:26:06]That is a criminal act. It is quite another thing for a law-abiding person to be deterred from assembling lawfully or making their strongly held anti-Israel and pro-Palestinian views public for fear of their actions being construed as support for Palestine action.

[00:26:28]We accept that there are many people who may be subject to this chilling effect as a direct result of the prescription decision.

[00:26:38]In addition, we accepted that there is a group of people who might wish to support Palestine Action as an organization separately from supporting its aims.

[00:26:50]Their rights under articles 10 and 11 are also affected if Palestine action is prescribed.

[00:26:58]We also took into account as factors weighing in the balance against prescription one the limited number of terrorist incidents perpetrated by Palestine action as compared to its other activities.

[00:27:14]Two the submission that procription may be regarded by some as too heavyhanded.

[00:27:22]Three, the fact that most organizations that are prescribed or considered for prescription do advocate violence against people [clears throat] as their primary motivation.

[00:27:35]So that it is unusual to prescribe an organization whose primary objective is to cause damage to property.

[00:27:45]Factors weighing in the balance in favor of prescription.

[00:27:50]The factors weighing in favor of prescription are all concerned with the rights of the community relating to the interests of national security and the protection of the rights of third parties under articles 102 and 112.

[00:28:07]We dealt with them under the following headings. One, the nature of Palestine action. Two, the level of the threat from Palestine action. Three, the underground manual. Four, the escalating trajectory of Palestine actions activities.

[00:28:26]Five, the damage inflicted on lawful business and key national infrastructure.

[00:28:32]Six, the key benefit of degrading the organization and its finances, and seven, allowing an appropriate margin of appreciation to the home secretary's decision.

[00:28:46]The first factor to be considered in favor of prescription was the nature of Palestine Action. As indicated, Palestine Action is not a transparent, nonviolent, direct action protest group as it claims. The whole premise of Palestine Action is to cause damage to property belonging to Elbert and other companies trading lawfully in the United Kingdom. It is a covert organization that has revealed little about itself in these proceedings. Its activities are carried out by unidentifiable cells whose objective is to avoid detection as reflected amongst other things in the underground manual.

[00:29:30]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. In that connection, it was important to understand that the home secretary is in the best position to assess those future threats and risks.

[00:29:51]She was advised by experts including specialist anti-terrorist police.

[00:29:58]Palestine Actions campaign was intended to close down lawful businesses. It took direct criminal action against businesses and institutions including key national infrastructure and defense firms providing services and supplies to support Ukraine, NATO, the Five Eyes allies and the UK defense enterprise.

[00:30:23]The prescription review group unanimously concluded that all discretionary considerations weighed in favor of prescription and that Palestine Action was responsible for an escalatory campaign of direct action across the UK that had crossed the threshold into terrorism.

[00:30:43]Moreover, the Joint Terrorist Analysis C Center's assessment was that over the coming 12 months, Palestine Action would conduct further activity constituting serious property damage in an act of terrorism and that it continued to conduct direct action at a variety of levels.

[00:31:04]The submission to the Home Secretary of the 26th of March, 2025 recorded that evidence collected through police investigations indicate that Palestine Action members have intended to further escalate the seriousness of their activities.

[00:31:24]The escalating trajectory of the seriousness of Palestine actions activities is a theme of the expert assessments provided to the home secretary. In our judgment, this was an important feature. It was the home secretary's responsibility to protect the public.

[00:31:43]The final factor to take into account related to the impact and the operational benefits of prescription.

[00:31:50]The prescription review group thought that prescribing Palestine action would offer significant disruptive benefits beyond the current policing powers being utilized to deal with its activity.

[00:32:04]The prescription review group also thought that prescription could impact its recruitment, financial flows and operating model and may also support the disruption of its technical and digital security.

[00:32:19]It is obviously inherently problematic to degrade and disrupt the funding of a secretive cell-based organization without prescription.

[00:32:31]We then turned to the margin of appreciation.

[00:32:35]Whether to prescribe Palestine action was preeminently a decision that the home secretary had to take on the basis of the evidence and the advice of experts available to her in matters of national security. She was best placed to do so. We looked aresh at all the materials available to the home secretary both closed and open affording a due margin of appreciation to her own decision.

[00:33:05]We were satisfied that the prescription decision was a justified and proportionate interference with individual rights.

[00:33:15]We emphasized that the prescription decision was not merely a judgment based on Palestine actions past activities.

[00:33:24]It involved an assessment of future risk to national security if Palestine action was not prescribed. a pattern of escalating behavior was obviously highly material.

[00:33:37]In this context, we noted that the home secretary took the ultimate decision to prescribe on the same day as and after the Brize Norton incident when Palestine action activists broke into RAF Bri Norton and damaged two military planes.

[00:33:56]This was a serious incident in evidencing the escalation of Palestine actions activities threatening national security and violating the rights of third parties.

[00:34:08]When the severity of the effects of prescription on the rights of individuals are balanced against the importance of the objectives of protecting national security and the rights and freedoms of others, affording an appropriate margin of appreciation to the home secretary's decision, we found that the latter in this case outweighed the former.

[00:34:32]On this basis having regard to the matters taken in into account under the first three bank melac questions the impact of prescription on the important article 10 and 11 rights of individuals on the one hand and the consequences of non-prescription on national security and the interests of the community on the other. We concluded that the prescription decision struck a fair balance.

[00:35:03]We therefore allowed the home secretary's appeal against the decision of the divisional court. The divisional court proceeded on the basis of a misinterpretation of the prescription policy. It was mistaken in its approach to the question of proportionality in particular as to the relevance of future risk assessment and margin of appreciation.

[00:35:28]We had assessed proportionality of fresh separately. For the reasons set out in our written judgment, we dismiss Mr. Mory's application for permission to cross appeal.

[00:35:42]We recognize that the prescription of an organization like Palestine Action is highly controversial.

[00:35:50]We recognize too that Palestine action is supported by many otherwise law-abiding citizens and that it is engaged in peaceful as well as non-paceful protest.

[00:36:04]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 directaction civil disobedience protest group like the suffragettes operating transparently in the open. It is a covert organization operating with secret cells to avoid the detection and prosecution of those using violence to destroy the property of third parties. Palestine Actions activities have caused injury as well as property damage. And at no stage has Palestine Action suggested that its terrorist activities were either a mistake or an aberration.

[00:36:52]Rather, Palestine Action has lorded those who took part.

[00:36:57]The contents of the underground manual provide good evidence of Palestine actions continuing intention to promote the use of violence regardless of the risk that this will result in serious damage to property [clears throat] or serious violence against members of the public.

[00:37:16]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 UK.

[00:37:29]We have done so by applying wellestablished 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.

[00:37:50]The prescription decision was not unlawful.

[00:37:53]We set aside the cautioning order of the 25th of February 2026 made by the divisional court.

[00:38:04]Jeffrey, any corrections? Any correction?

[00:38:10]>> Yes.

[00:38:12]uh we indicated to the parties that we would now invite uh agreed editorial corrections to be submitted please by 11:00 on Wednesday the 17th of June together with an agreed draft order to the extent that any matters cannot be agreed we would invite short written submissions please from the parties again by 11:00 on Wednesday but please do address us if that is not going to uh give you enough time potentially to deal with any consequential matters.

[00:38:55]>> Thank you.

[00:38:58][clears throat] Can we therefore conclude by thanking everybody in court um all the lawyers uh including solicitors and council uh for their very helpful and constructive submissions both in writing and orally.

[00:39:12]Thank you all.

[00:39:18]All persons having anything further to do before my ladies and lords may now depart.