AC-2025-LON-002122 - [2025] EWHC 2013 (Admin)

It is a premise of the Home Secretary’s “alternative remedy” argument that there are two routes by which the proscription can be challenged: (i) judicial review or (ii) application for deproscription followed by appeal to POAC. This leaves out of account a third possible route. Those charged with criminal offences under the 2000 Act in respect of alleged support for PA may seek to challenge the validity of the proscription order by way of defence to their criminal proceedings. On the face of it, since the order is secondary legislation, it seems likely that they would be entitled to do so, applying the principles set out by the House of Lords in Boddington v British Transport Police [1999] 2 AC 143.

As a matter of principle, it seems likely that the defence could include the incompatibility of the order with Articles 10 and 11 ECHR: see e.g. RR v Secretary of State for Work and Pensions [2019] UKSC 52, [2019] 1 WLR 6430. Sir James would not be drawn on whether such a defence would be open to defendants in criminal proceedings, but suggested no plausible reason why not.

If the legality of the proscription order can properly be raised by way of defence to criminal proceedings, that would open up the spectre of different and possibly conflicting decisions on that issue in Magistrates’ Courts across England and Wales or before different judges or juries in the Crown Court. That would be a recipe for chaos. To avoid it, there is a strong public interest in allowing the legality of the order to be determined authoritatively as soon as possible. The obvious way to do that is in judicial review proceedings.

The public interest in such a determination would be at least as strong if the challenge fails as if it succeeds. If the proscription order is determined to be lawful, there would a real benefit in making that clear to the general public as soon as possible, so as to prevent the criminal courts from becoming clogged up with unmeritorious defences.

At one stage it was suggested that those charged with criminal offences which depend on the validity of the proscription order could invite the criminal courts to adjourn their cases pending the outcome of an application for deproscription and appeal to POAC. That seems unlikely to provide a satisfactory solution, not least because an appeal to POAC does not render the proscription order void ab initio and the provisions of s. 7 of the 2000 Act (which provide for appeals against criminal convictions in respect of offences in relation to organisations that are subsequently deproscribed) apply only where the activity in respect of which the individual was convicted took place on or after the date of the refusal to deproscribe.

Sir James suggested that there might be a way around this: s. 3 of the Human Rights Act 1998 could be used to achieve an ECHR-compliant reading of s. 7. It is by no means obvious that such an argument would succeed, given the clear terms of s. 7. In any event, it is a complication that would not arise if the proscription order can be challenged in judicial review proceedings. The status of criminal convictions in respect of activity in relation to PA since proscription is far from a theoretical issue, given that large numbers of individuals have already been arrested for engaging in such activity.