Jun 22, 2026 · 37 min · 11 segments
Lucy McCann is joined by Jonathan Metzer (1 Crown Office Row) to update listeners on the Palestine Action litigation. Last week the Court of Appeal overturned the Divisional Court’s decision to render…
Jonathan MetzerGuestLucy McCannHostThe Court of Appeal considered this question afresh, and they said that they did so given the major social and political significance of the case.
So they look at the four-stage test under the Bank Mellat case, which is a Supreme Court case.
They were very quick on stages one and two, so they were satisfied that the objective was sufficiently important to justify the limitation of a fundamental right, and that it was rationally connected to the objective.
They did spend time in detail looking at whether any less intrusive measure should have been used by the Home Secretary, and the claimant had put forward quite a few options.
The view of the Court of Appeal was that first of all, civil remedies were an unsatisfactory alternative because they wouldn't be being sought by the Home Secretary.
They would effectively be self-help civil remedies for private parties to pursue at their own risk and cost.
So the Court of Appeal said that that wasn't an adequate, less intrusive alternative.
They also looked at measures like asset freezing and serious crime prevention orders and criminal behavior orders.
But they said that that wouldn't achieve the collective impact of a prescription, which was the facilitating the disruption and the deconstruction of the network of Palestine action.
So again, they felt that those options were not realistic, less intrusive measures which should have been used instead.
The one that the claimant spent the most time arguing for was that ordinary prosecutions under the criminal law should have been used as a less intrusive alternative.
Court of Appeal said the problem is, first of all, you've got the problem that you would be leaving an organization in a position to commit crimes and then looking to detect and prosecute the individuals afterwards.
And thirdly, criminal investigatory powers require legal and operational justification.
They depend on skill, judgment, and resources, and sometimes fortune, and sometimes a plan to commit a crime can be concealed successfully, and there can be no basis for conducting an investigation.
So the Court of Appeal considered that ordinary prosecutions weren't an adequate, less intrusive alternative.
And the Court of Appeal also noted that the Home Secretary had considered potential alternatives, and so that fed back into the margin of discretion.
The fact that the Home Secretary had gone through a process before the decision of considering whether there was an alternative was another reason why, in the views of the court, there wasn't a less intrusive alternative which ought to have been used instead.
The Court of Appeal considered this question afresh, and they said that they did so given the major social and political significance of the case.
So they look at the four-stage test under the Bank Mellat case, which is a Supreme Court case.
They were very quick on stages one and two, so they were satisfied that the objective was sufficiently important to justify the limitation of a fundamental right, and that it was rationally connected to the objective.
They did spend time in detail looking at whether any less intrusive measure should have been used by the Home Secretary, and the claimant had put forward quite a few options.
The view of the Court of Appeal was that first of all, civil remedies were an unsatisfactory alternative because they wouldn't be being sought by the Home Secretary.
They would effectively be self-help civil remedies for private parties to pursue at their own risk and cost.
So the Court of Appeal said that that wasn't an adequate, less intrusive alternative.
They also looked at measures like asset freezing and serious crime prevention orders and criminal behavior orders.
But they said that that wouldn't achieve the collective impact of a prescription, which was the facilitating the disruption and the deconstruction of the network of Palestine action.
So again, they felt that those options were not realistic, less intrusive measures which should have been used instead.
The one that the claimant spent the most time arguing for was that ordinary prosecutions under the criminal law should have been used as a less intrusive alternative.
Court of Appeal said the problem is, first of all, you've got the problem that you would be leaving an organization in a position to commit crimes and then looking to detect and prosecute the individuals afterwards.
And thirdly, criminal investigatory powers require legal and operational justification.
They depend on skill, judgment, and resources, and sometimes fortune, and sometimes a plan to commit a crime can be concealed successfully, and there can be no basis for conducting an investigation.
So the Court of Appeal considered that ordinary prosecutions weren't an adequate, less intrusive alternative.
And the Court of Appeal also noted that the Home Secretary had considered potential alternatives, and so that fed back into the margin of discretion.
The fact that the Home Secretary had gone through a process before the decision of considering whether there was an alternative was another reason why, in the views of the court, there wasn't a less intrusive alternative which ought to have been used instead.
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