Operational Benefits Are a Relevant Proscription Factor: A Wide National-Security Margin in Article 10/11 Challenges

Case: The Secretary of State for the Home Department v Ammori, R (on the application of)
Citation: [2026] EWCA Civ 721 (Court of Appeal (Civil Division), 15 June 2026)
Appeal from: Divisional Court, President of the King's Bench Division, Swift and Steyn JJ [2026] EWHC 292 (Admin)

Core legal takeaways

  • Proscription Policy interpretation: the policy’s listed “other factors” are non-exhaustive; it does not confine the Home Secretary to factors “similar” to the listed ones; and it permits consideration of the operational benefits (disruption/deconstruction) of proscription.
  • Scope of “activities”: “the nature and scale of the organisation’s activities” includes all relevant organisational activity (recruitment, fundraising, covert structure and non-terrorist acts), not only acts meeting the statutory definition of terrorism.
  • Article 17 ECHR: Article 17 will exclude Article 10/11 only in exceptional, extreme cases; peaceful protestors’ rights and “chilling effect” arguments remain within the ambit of Articles 10 and 11.
  • Proportionality on appeal: in a case of major social/political significance, the Court of Appeal may conduct the Bank Mellat proportionality assessment afresh (drawing on Shvidler).
  • Margin of appreciation/respect: a wide margin is owed where counter-terrorism and national security assessments dominate (drawing on Rehman, Carlile, Begum UKSC, U3, Shvidler, ABJ and ECtHR authority).
  • Procedural fairness: the Terrorism Act 2000 impliedly excludes any duty to give the target organisation an opportunity to make representations pre-proscription (given the scheme’s reliance on Parliamentary affirmative resolution and a post-proscription deproscription route).
  • Article 14 discrimination: no viable comparators were shown to be in an analogous position because they were not assessed as “concerned in terrorism”; and no evidential basis for indirect discrimination on Palestinian ethnicity/national origin/nationality was established.

1. Introduction

The claimant (Ms Ammori), a co-founder of “Palestine Action”, challenged the Home Secretary’s decision to proscribe Palestine Action as a terrorist organisation under section 3 and Schedule 2 of the Terrorism Act 2000. Proscription took effect through the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2025, approved by affirmative resolutions of both Houses and commencing on 5 July 2025.

The challenge sat at the intersection of (i) counter-terrorism measures that criminalise membership/support and constrain funding, and (ii) Convention rights to free expression and assembly (Articles 10 and 11 ECHR), including the “chilling effect” on lawful protest. The litigation also had an unusually sharp practical backdrop: hundreds of pending criminal cases linked to the proscription were noted.

The Divisional Court quashed the Proscription Decision on two grounds: (a) breach/misapplication of the Home Secretary’s Proscription Policy (the “Policy Ground”) and (b) disproportionate interference with Articles 10 and 11 (the “Proportionality Ground”). The Court of Appeal allowed the Home Secretary’s appeal and restored the proscription.

2. Summary of the judgment

2.1 Outcome

  • Appeal allowed; the Proscription Decision and Order should not have been quashed.
  • Article 17 argument by the Home Secretary rejected (Articles 10 and 11 engaged).
  • Proportionality reassessed afresh and upheld; proscription deemed a justified interference with Articles 10 and 11.
  • Permission to cross-appeal refused on procedural fairness (no pre-proscription duty to consult) and discrimination (Article 14).

2.2 The court’s headline reasoning

  • Policy: the Proscription Policy is a broad public-facing document; it is not a limiting code. Considering operational benefits was lawful.
  • Risk and future assessment: proscription is aimed at degrading an organisation’s capacity; future risk, escalation and covert structure were central.
  • Balance: while interference with protest expression/association is significant, it was outweighed by national security, protection of others’ rights, and the operational necessity of disrupting a covert cell-based network advocating serious property damage.
  • Deference/respect: the executive’s institutional competence and democratic accountability in national security justified a wide margin in the proportionality evaluation.

The Court of Appeal also noted a closed judgment addressing closed materials relied upon by the Home Secretary.

3. Analysis

3.1 Statutory and rights framework (why proscription is uniquely intrusive)

The court emphasised that proscription is not symbolic: it activates a cluster of offences (notably sections 11–13 of the Terrorism Act 2000) and interacts with property/funding provisions (sections 15–18; and the “benefit of a proscribed organisation” concept in section 1(5)). These consequences explain both (i) why Convention rights are substantially affected and (ii) why operational disruption is a rational and weighty consideration.

3.2 The new administrative-law clarification: what the Proscription Policy does (and does not) do

A key doctrinal move is the court’s rejection of the Divisional Court’s “limiting” reading of the Proscription Policy. The Court of Appeal treated the policy as an open-textured, public information document whose list of discretionary factors is explicitly non-exhaustive.

3.2.1 Precedents cited: interpreting policies as guides, not codes

  • The First Secretary of State and another v Sainsbury's Supermarkets Ltd [2005] EWCA Civ 520 – policies are to be interpreted objectively; they are “guides”, not statutory rules.
  • Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PTSR 983 and R v Criminal Injuries Compensation Board ex p K [1998] 1 WLR 1458 – caution against excessively analytical readings of non-statutory texts.
  • Secretary of State for Communities and Local Government v. Hopkins Homes Ltd [2017] UKSC 37; [2017] 1 WLR 1865 – different levels of specificity demand different interpretive intensity.
  • R (Tesco Stores Ltd) v. Stockport MBC [2025] EWCA Civ 610; [2025] PTSR 1877 – sophisticated interpretive approaches can improperly draw courts into policy-making.

3.2.2 The court’s construction (the operative rule)

  • Operational benefits are relevant: because they go to the efficacy of proscription, which is material to proportionality (including “to the extent that the measure will contribute to its achievement” in Lord Reed’s formulation in Bank Mellat).
  • No “similarity” constraint: the court rejected any requirement that “other factors” must resemble the five listed factors.
  • “Activities” means the full picture: recruitment, fundraising, public-facing promotion, covert methods and organisational structure can all bear on future risk and threat.

3.3 Article 17 ECHR: a high threshold, not a shortcut

The Home Secretary argued that Article 17 (abuse of rights) prevented Articles 10 and 11 from being engaged at all. The court rejected this, stressing that the case centrally concerned the rights of persons who wished to protest lawfully and might be deterred (the “chilling effect”).

3.3.1 Precedents cited: Article 17 is exceptional

  • Perincek v Switzerland (2016) 63 EHRR 6 – Article 17 applies only exceptionally and in extreme cases; it is invoked where it is “immediately clear” that Article 10 is being used for ends contrary to Convention values.
  • Roj TV A/S v Denmark (2018) 67 EHRR SE8 and Sabuncu v Turkey (23199/17) 19 April 2021 – relied on by the Home Secretary, but insufficient to meet the “high threshold” on these facts.
  • Attorney General's Reference (No 1 of 2022) [2022] EWCA Crim 1259; [2023] KB 37 – referenced in argument on boundaries of protected expression, but did not justify excluding Articles 10/11 categorically.

3.3.2 Practical effect

Article 17 could not be used to avoid the proportionality exercise. The court’s approach ensures that proscription decisions remain reviewable as interferences with Convention rights, even where the proscribed group is found “concerned in terrorism”.

3.4 Proportionality: why the Court of Appeal re-did the balance

The court held it should consider proportionality afresh (rather than merely review the Divisional Court) due to the case’s “major social [and] political significance” and the public importance of the issues, applying guidance in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30; [2025] 3 WLR 346.

3.4.1 Precedents cited: the four-stage test and appellate method

  • Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700 – the four-stage proportionality test; and Lord Reed’s “contribute to its achievement” refinement at the fair-balance stage.
  • Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30; [2025] 3 WLR 346 – endorsed a fresh appellate proportionality evaluation in appropriate cases; and emphasised respect for executive assessments in certain domains.

3.4.2 The court’s application of Bank Mellat (in substance)

  1. Importance of objective: protecting national security and others’ rights/freedoms are legitimate and weighty (Articles 10.2 and 11.2).
  2. Rational connection: proscription was rationally connected to disrupting and degrading the organisation as a network.
  3. Less intrusive means: civil injunctions, individual orders/sanctions, and ordinary criminal prosecutions were not adequate substitutes because they do not disrupt the organisation holistically and tend to act after offences are committed.
  4. Fair balance: significant Article 10/11 interference and chilling effects were outweighed by: covert cell structure; advocacy and operational guidance for serious damage; escalation; threats to key infrastructure/defence-related entities; and funding/disruption benefits.

3.5 Margin of appreciation / “respect”: the constitutional dimension of terrorism decisions

The court stressed that national security assessments and future risk judgments are areas of executive institutional competence and democratic accountability. It held that the Divisional Court understated this, describing only “some latitude”, and did not clearly show how it was applied.

3.5.1 Domestic precedents cited: deference/respect in national security

  • Rehman v Secretary of State for the Home Department [2001] UKHL 47; [2001] 1 AC 153 – courts should recognise the executive’s role and expertise in evaluating national security risk.
  • R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945 – institutional competence/democratic accountability as reasons for judicial restraint in sensitive security contexts.
  • Begum v Secretary of State for the Home Department [2021] UKSC 7; [2021] AC 765 and U3 v Secretary of State for the Home Department [2025] UKSC 19; [2025] AC 1510 – wide respect for executive assessment, especially where security-sensitive material and risk prediction are involved.
  • R v ABJ [2026] UKSC 8 – freedom of expression v counter-terrorism is “highly sensitive” and attracts a wide margin.

3.5.2 ECtHR material cited: wide margin for indirect support prohibitions

  • Schwabe v. Germany (2011) 59 EHRR 28 – cited for states’ room to manoeuvre in counter-terrorism restrictions.
  • Internationale Humanitare Hilfsorganisation eV v. Germany (Application No 11214/19) 10 October 2023 – “very weighty” aims; states enjoy a wide margin regarding prohibitions on indirect support for terrorism.

3.5.3 Rejection of “international consensus” narrowing the margin

The court rejected submissions that an emerging Council of Europe consensus against such proscription should narrow the margin (discussing by analogy R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 233), finding the evidential basis “exiguous” and pointing to established ECtHR acceptance of a wide margin in this terrain.

3.6 Civil disobedience versus covert “cells”: the court’s framing of protest tradition

A notable feature is the court’s explicit differentiation between (a) public, non-violent civil disobedience where protestors accept legal consequences and (b) covert organisation designed to avoid detection and enable escalatory property destruction. The court used this distinction to evaluate the weight of Articles 10/11 claims when attached to an organisational “brand” linked to terrorist acts.

3.6.1 Authorities cited on civil disobedience

  • R v Jones (Margaret) [2007] 1 AC 136 – accommodation of conscientious law-breaking depends on restraint/proportionality and acceptance of penalties.
  • Cuadrilla Bowland Ltd v. Persons Unknown [2020] EWCA Civ 9; [2020] 4 WLR 29 – civil disobedience as public, non-violent political communication; avoidance of detection undermines the characterisation.

3.7 Cross-appeal issues

3.7.1 Procedural fairness: no duty to consult before proscription

The court refused permission to cross-appeal and held the Terrorism Act 2000 impliedly excludes a pre-proscription consultation duty. It relied on the structure of the scheme: no consultation mechanism, but an express post-proscription deproscription pathway and Parliamentary affirmative resolution procedure.

3.7.1.1 Precedents cited

  • Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700 – fairness is fundamental, but can be excluded expressly or by implication; and practicality/pointlessness can negate a duty in context.
  • R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 – fairness depends on context and statutory scheme.
  • Begum v Secretary of State for the Home Department (No 2) [2024] EWCA Civ 152; [2024] 1 WLR 4269 – national security context as a critical factor in procedural fairness.
  • Settlers Court RTM Co Ltd v. FirstPort Property Services Ltd [2022] UKSC 1 – courts lean against constructions producing unworkable results (used to reinforce implied exclusion).

3.7.2 Discrimination (Article 14): comparators and evidence

The court refused permission to cross-appeal because: (i) suggested comparator protest groups were not in an analogous position, not having been assessed as “concerned in terrorism”; and (ii) there was insufficient evidence that proscription disproportionately impacted persons of Palestinian ethnicity/national origin/nationality. In any event, any differential effect would be objectively justified by the proportionate pursuit of national security and protection of others’ rights.

4. Impact

  • Policy Ground litigation narrowed: challenges based on “breach of policy” will face difficulty where the policy is broadly framed and expressly non-exhaustive; courts will resist “code-like” limitations unless clearly stated.
  • Operational efficacy becomes central: disruption/deconstruction benefits are confirmed as legitimate factors in the proportionality calculus (including at the “less intrusive means” and “fair balance” stages).
  • Future risk is a legitimate focus: the judgment reinforces that proscription is not merely punitive for past acts; it is preventative and organisational, making escalation indicators and covert structure highly material.
  • Wider deference in terrorism speech/association restrictions: the judgment consolidates a trend (anchored in ABJ and ECtHR case law) towards a wide margin where measures target indirect support and organisational infrastructure linked to terrorism.
  • Procedural fairness boundary: the implied exclusion of pre-proscription consultation provides a strong answer to future attempts to import a hearing right before proscription under the 2000 Act scheme.
  • Protest movements and proscription threshold: while affirming the importance of Articles 10/11 and chilling effects, the judgment indicates that “movement” branding does not shield organisations whose covert strategy and guidance promotes serious damage meeting the statutory terrorism definition.

5. Complex concepts simplified

  • “Proscription” (Terrorism Act 2000): a legal designation that triggers offences such as membership, inviting support, and displaying supportive symbols, and strengthens funding/property controls. It targets the organisation as a network, not only individual criminal acts.
  • “Concerned in terrorism” (section 3(5)): broader than committing terrorist acts; it includes preparing, promoting/encouraging, or otherwise being involved.
  • Bank Mellat proportionality: (1) is the aim important enough; (2) does the measure help achieve it; (3) is there a less rights-intrusive way that still works; (4) does the overall balance fairly justify the interference.
  • “Margin of appreciation” / “respect” (domestic context): not blind acceptance, but recognition that Ministers are often better placed to assess national security risk and are democratically accountable; courts still decide legality, but give weight to executive judgments where appropriate.
  • Article 17 ECHR (abuse of rights): a narrow “safety valve” preventing reliance on Convention rights to destroy Convention values; it is reserved for extreme cases and will not usually remove Article 10/11 protections from lawful protestors affected indirectly.
  • “Chilling effect”: when lawful speakers/protestors self-censor or avoid assembly because they fear criminal liability or misunderstanding of the law. The court accepted its relevance but found it outweighed on these facts.

6. Conclusion

[2026] EWCA Civ 721 establishes a clear, principle-driven stance on proscription challenges: (i) the Home Secretary’s Proscription Policy does not restrict consideration of operational disruption benefits and is not to be read as a limiting code; (ii) Article 17 will rarely exclude Articles 10 and 11, so proportionality must usually be addressed; and (iii) in national security and counter-terrorism, courts will conduct a rigorous proportionality analysis but will accord a wide margin of appreciation/respect to executive risk assessment and the institutional competence underpinning it.

The decision is likely to be cited both for its administrative-law approach to non-statutory policy interpretation and for its consolidation of the modern proportionality/margin methodology in terrorism-related restrictions on expression and association.