The Kneecap prosecution collapsed because police and prosecutors did not take terrorism law seriously

There is an old chestnut of a phrase: “off on a technicality”.

What this usually means – or at least is usually intended to mean to mean – is that but for some procedural or evidential error, a person would have been found legally liable for a thing.

The term even has its own page at TV Tropes

The wording has become so common, however, that it now can cover the ending of any case, even if it would not be the case that a person would have otherwise have been found guilty or civilly liable. It now just means that a case has come to an end without any substantive finding either way.

It is a journalistic shorthand which can obscure as much as it explains.

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Last week the prosecution collapsed of Liam Og O hAnnaidh (Anglicised as Liam O’Hanna). The defendant is, of course, part of the Irish rap group Kneecap.

And according to the judgment which brought this case to an end:

On 21st November 2024, the Defendant performed as part of the rap group, Kneecap, at the O2 Forum, Kentish Town, in London. It is alleged that, as part of this performance, the Defendant displayed a Hezbollah flag in such a way or in such circumstances as to arouse reasonable suspicion that he is a supporter of a proscribed organisation.

Hezbollah (also known as Hizbollah) is a proscribed terrorist organisation under schedule 2 of the Terrorism Act 2000:

The group was added to the schedule, it seems, in 2019.

Under secton 13 of the 2000 Act a person in a public place commits an offence if he (or she) wears, carries or displays an article, in such a way or in such circumstances as to arouse reasonable suspicion that he (or she) is a member or supporter of a proscribed organisation:

On the face of it it, if the prosecution can show that a defendant wore such a prohibited item the prosecution would be straightforward.

But.

The Terrorism Act – being terrorism legislation – imposes an additional burden on a prosecution when such an offence has been committed for a purpose wholly or partly connected with the affairs of a country other than the United Kingdom.

The Terrorism Act provides that there is a safeguard.

Before a prosecution can be brought the consent of the Attorney General (or his or her deputy the Solicitor General) should be obtained – a consent which should (at least in theory) not be taken for granted.

This is not a trivial tickbox, but an important requirement set by parliament.

For terrorism legislation is special – it provides a powerful body of law in addition to the general criminal and civil law of the land. In principle, it should only be used sparingly and carefully, when the general law of the land is insufficient.

And because terrorism law is so powerful -especially in respect of how it can interfere with fundamental rights – it has these additional safeguards.

One such safeguard is that it not enough for the police and Crown Prosecution Service (CPS) to want to bring a prosecution in respect of a person who is a member or a supporter of a foreign proscribed organisation, it also needs the consent of the government’s most senior law officer.

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Terrorism law is important and it should be taken seriously, not least by the police and CPS.

But in this case, the police and the CPS did not take it seriously.

As Joshua Rozenberg helpfully sets out in his post on this case, the decision to prosecute was left to the very last minute of the six-month period (endind 21 May) to bring a prosecution:

There was then, on 22 May, what must have been a “oh XXXX” moment for the police and the prosecutors as it seems to have suddenly dawned on them that they needed the consent of the Attorney General (or his/her deputy the Solicitor General).

Whoopsie.

And so there was a scramble.

The police and the prosecutors were more like students with an essay crisis, than custodians of the public interest.

This was Keystone Cops stuff.

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There are errors, and there are errors.

There are technicalities, and there are technicalities.

Some technicalities are about a party not complying with the procedural rules of the court or attempting to put in evidence which is not admissible.

These can be serious errors but they are everyday errors, within the confines of litigation in action.

And then there are errors so fundamental – so basic – that they go to the very ability of a court to even hear a case.

These are jurisdictional errors.

(As Aslan might say, this is the deeper legal magic.)

If a court does not have jurisdiction, it cannot hear a case at all.

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If one looks at the judgment you will see that the judge – the most senior magistrate in England of Wales – is at pains to emphasise that his decision has nothing with the merits of the case:

4. This ruling is not about the defendant’s innocence or guilt rather only whether this court has jurisdiction to hear the case.

5. Therefore, this ruling is confined exclusively to the question of jurisdiction. It concerns whether these proceedings were lawfully instituted within the statutory time limit prescribed by section 127 of the Magistrates’ Courts Act 1980 and, crucially, with the necessary consents as required by S 117 Terrorism Act 2000.

6. It is neither necessary nor appropriate for the Court, at this stage, to engage with the merits of the underlying allegation, or to determine whether the offence is in fact made out from the evidence.

And the Chief Magistrate ruled that the court had not got jurisdiction:

75. Thus, I am satisfied that proceedings against this defendant were instituted on 21st May 2025 when the written charge was issued. At that time, the necessary consent and permission required by law had not been obtained. As such, the proceedings were instituted unlawfully and are null.

76. I therefore hold that the Crown has failed to establish jurisdiction. The proceedings instituted in this case are invalid and the Court has no jurisdiction to hear them.

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A jurisdictional challenge is not easy in any area of law. To bring such a challenge means telling the court they cannot even hear the case. These are often “brave” submissions.

And so it is no surprise that the defendant in this case instructed not one, not two, but three King’s Counsel, as well as a junior barrister:

Such a challenge would require resources not normally available to a defendant.

One wonders how many cases where there has been no jurisdiction have been brought where the defendant could have challenged jurisdiction but did not have the awareness or the means to do so.

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Some cynics have opined that this was a convenient way for the British state to get rid of what may have been an embarrassing case.

Not so here.

The judgment shows that the prosecutors worked hard – indeed were desperate – to get the judge to accept jurisdiction, and indeed they also knocked out the alternative basis for jurisdictional challenge.

This is actually a highly inconvenient ruling for the prosecutors, meaning they can no longer get by with retrospective consents.

They really will not like this.

Indeed, as Joshua Rozenberg reports at his post, an appeal by case stated is being seriously considered by disappointed prosecutors.

We can bet it is.

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At the bottom of this mess is a simple point: the police and the prosecutors were careless with terrorism law and careless about its express safeguards.

Things were left to the last minute and a consent (which may or may not have been given) – a step imposed by parliament as a crucial step – was not obtained.

And this mishap meant that the Chief Magistrate of England and Wales had no jurisdiction to hear what was on the face of it a terrorism case.

Police and the prosecutors should remember that this is terrorism law that they are dealing with.

Terrorism law should be taken seriously.