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

Against this background, I can explain relatively briefly what I draw from Richards J’s judgment in the Kurdistan Workers’ Party case.

Richards J identified three considerations which, at [79], he said “tell strongly in favour of POAC being the appropriate tribunal” for consideration of issues about the proportionality of proscription. As I have sought to explain, the considerations at [76] and [77] flowed from the absence at the relevant time of a statutory closed material procedure in the High Court. The position in that respect has changed, so these parts of Richards J’s reasoning are no longer apposite. Moreover, Richards J was in my view wrong, in [78] of his judgment, to identify as a significant factor in favour of POAC’s suitability as a forum for hearing challenges to proscription the fact that it had been designated as the appropriate tribunal in respect of human rights claims arising from refusals to deproscribe.

At [85], Richards J took into account the difference in remedies available in POAC and on judicial review, including the fact that, even if an appeal to POAC succeeded, “the proscription Order remains valid as from the date when the original order came into effect until the date of the further Order removing the organisation from the list”. He acknowledged that this difference might be relevant “if any of the claimants were subject to sanctions dependent upon the validity of the proscription in the interim period (though account would have to be taken of the mitigating effect of s.7)”. He nonetheless concluded that this difference would not have any practical consequence for the claimants in that case.

This may have been a fair comment on the facts of the cases before Richards J, where criminal proceedings for offences in relation to the proscribed organisations were apparently not in prospect. In the present case, however, there are already a large number of criminal proceedings for offences in relation to PA. Richards J’s reasoning does not take into account the procedural repercussions of the defendants in these cases raising the invalidity of the order as a defence to these prosecutions. It also fails to consider the difficulty that would arise for those charged in respect of conduct occurring before any refusal to deproscribe if the only remedy is a prospective one.

For these reasons, the circumstances of the case before Richards J are, in my judgment, materially different from those in the present case. I am therefore not bound by judicial comity to follow his reasoning. In any event, I consider that decision to be clearly wrong in the respects I have identified and I decline to follow it.