The Criminalization of Conscience

What Happens When You Have an Unjust Law

This article focusses on the way that terrorism legislation and the designation of entities as terrorist organisations can have a chilling effect upon other civil liberties. I should make it clear that because the article concentrates on the group Palestine Action does not mean that I support that group, its aims, objectives or methods. But by the same token those who do so sympathise should be able to make their voices heard. This article discusses some ways by which unjust laws or their enforcement may be resisted

In Britain today, to carry a placard reading “I support Palestine Action” is not just an act of protest—it is, legally speaking, an act of terrorism.

Palestine Action, a direct-action network that smashes windows, sprays red paint, and chains itself to factory gates to halt the flow of weapons to Israel, has been added to the UK’s list of proscribed terrorist organisations. The list is not a subtle one: it includes al-Qaida, the Ulster Defence Association, and Atomwaffen, groups synonymous with murder and ideological violence. Into this company the British government has placed Palestine Action.

The consequences are profound. To voice support for the group—even silently—risks arrest. On July 5, 2025, police detained members of the legal campaign Defend Our Juries for standing outside Parliament with signs that read “I oppose genocide – I support Palestine Action.” Among those arrested was Sue Parfitt, an 83-year-old retired priest. She now faces a six-month prison term.

On Saturday 6 September a total of 890 arrests were made at a demonstration in central London on Saturday against the banning of the protest group Palestine Action.

Police arrested 857 people under the Terrorism Act for showing support for a proscribed group, while 33 people were arrested for other offences, including 17 for assaults on police officers, the Metropolitan police said.

The 857 people arrested under the Terrorism Act will be investigated by the Met’s counter-terrorism command.

The Disappearing Jury

The story of Palestine Action is not only about the boundaries of political protest. It is also about the vanishing role of juries in the most politically sensitive cases.

Historically, when activists have been prosecuted for property damage or disruption in the name of conscience, juries have sometimes acquitted them. The reason is a peculiar, controversial, but deeply rooted feature of the common law: jury nullification. A jury can, if it chooses, return a not guilty verdict even when convinced the defendant technically broke the law. It can say, in effect, that the law is unjust, or that justice in this case demands mercy.

The principle traces back centuries. In 1670, William Penn and William Mead, both Quakers, were arrested for holding an illegal assembly under the Conventicle Act. Judges tried to bully the jury into convicting them, even starving the jurors when they refused. Led by Edward Bushel, the panel held firm. Their acquittal became the famous Bushel’s Case, in which the Court of Common Pleas ruled that jurors could not be punished for their verdicts. It was a landmark: juries were free to decide according to conscience, not judicial command.

The idea crossed the Atlantic. Colonial American juries resisted the Navigation Acts and, later, the Fugitive Slave Act. In 1735, a New York jury acquitted printer John Peter Zenger of seditious libel after he attacked the colonial governor. The verdict helped establish the tradition of a free press.

In the modern era, jury nullification has been deployed, quietly but persistently, in cases involving activists, drug offenders, and those facing mandatory minimums. Courts forbid lawyers to urge it. Judges warn juries not to try it. Yet when a jury returns a not guilty verdict, the state cannot overturn it.

That is precisely why, in the case of support for Palestine Action, the government has ensured that the question will never reach a jury. Under Section 13 of the Terrorism Act, those accused of “support” for a proscribed organisation can be tried summarily, by judge alone. For Rev. Parfitt and others, there will be no panel of citizens who might look past the letter of the law to the conscience of the act.

When Support Becomes Terrorism

The reach of “support” under the Terrorism Act is astonishing. One can be charged not only for membership or fundraising but for carrying a banner, wearing a T-shirt, or speaking words that might “arouse reasonable suspicion” of sympathy. Courts have held that support need not be tangible or practical; it can be intellectual, indirect, even unintended. The definition, as one critic put it, veers into Humpty Dumpty territory: words mean what the government wants them to mean.

David Renton, a barrister writing in the London Review of Books, recounted how, in July 2025, an 80-year-old retired teacher was arrested for holding a placard in Cardiff. Police searched her home and seized books on Palestine, Extinction Rebellion, and the climate crisis. Others were arrested for holding paper signs reading “Genocide in Palestine” or “Time to Take Action.”

To display a protest sign is now, in certain contexts, indistinguishable from terrorism.

The Arc of Freedom

Britain is not yet an authoritarian state. It remains within the European human rights framework, and its judges still speak of liberty in ringing terms. Lord Hoffman once declared that freedom of expression is “a trump card which always wins.” Lord Bingham insisted it is “an essential condition of truly democratic government.” And yet, statute by statute, the terrain of liberty narrows.

The Police, Crime, Sentencing and Courts Act of 2022 widened police powers over protest. The Public Order Act of 2023 criminalised “locking on” and gave magistrates power to ban individuals from demonstrations altogether. Now, with the proscription of Palestine Action, the state is testing how far it can stretch the definition of terrorism and support of it to encompass political dissent.

The story has a familiar ring. In New Zealand, where similar debates simmer, the Supreme Court once defended a lone protester who sang outside a police officer’s home. Parliament is now poised to legislate that away. As the Irish lawyer John Philpot Curran warned in 1790—and as Thomas Jefferson is often credited with repeating—“The price of liberty is eternal vigilance.” We must remain on guard.

The Cost of Red Paint

Palestine Action’s tactics are disruptive, even destructive. They pour red paint on factory walls, dismantle machinery, and break windows. Their aim is to disrupt the machinery of war. Whether one sees this as legitimate civil disobedience or criminal vandalism depends on politics.

But the question the UK must now confront is larger: what happens when the state decides that even supporting such protest—silently, peacefully, symbolically—is an act of terror?

The jury, for centuries the people’s check on arbitrary law, has been written out of the script. In its place stands a government that insists dissent is itself dangerous. What Bushel fought for in 1670—the right of citizens to decide according to conscience—has been narrowed to the discretion of a magistrate.

Britain remains, as Renton observes, part of a human rights infrastructure that restrains its worst impulses. But if the red paint of Palestine Action is intolerable to the state, the question is whether the erosion of liberty will come not in splashes, but in the slow erosion and washing away of freedoms, clod by clod, statute by statute.

The warning, for Britain and beyond, is clear. Liberty is not lost in a moment of crisis. It is eroded in the quiet redefinition of words, in the steady criminalization of conscience.

Could it Happen Here?

The current New Zealand legislation dealing with terrorism is the Terrorism Suppression Act 2002.

The Government is considering a suite of changes to this legislation, such as making membership of a terrorist entity a criminal offence and creating new offences to capture public expressions of support for a terrorist act or designated entities.

Does this sound familiar? In a report in Newsroom for 11 August 2025 Sam Sachdeva wrote:

“In its consultation document, the Ministry of Justice asked for feedback to be provided to it by last Friday, August 8.

However, the ministry’s acting general manager for criminal justice, Fleur Keys, told Newsroom there was now no set date for the end of its targeted consultation process “due to the availability of some parties”.

The consultation process is described as limited and "behind closed doors," involving a selection of handpicked groups and experts rather than a broad public consultation.

The New Zealand Council for Civil Liberties announced that it had seen a copy of the consultation document. It advised that the changes proposed would give ministers dangerous powers to designate groups as ‘terrorist’ and create offences of publishing information that could be seen as supporting such groups.

Details of the consultation may be found on the Council’s website. Although the consultation period was extended we are none the wiser whether or not it has closed. Certainly, the secrecy surrounding the consultation must give cause for concern especially since the Ministry of Justice is meant to be committed to a culture of open government and not secrecy.

These developments must give cause for concern, especially given the events in the UK. Although jury nullification may not be a “thing” here in New Zealand, should these proposals see the light of day in legislation there will be a further erosion of freedom of expression and liberty.

And although trial by jury may not be available for the protesters who were arrested on 6 September, what may be seen as a continued people’s protest against the proscription of Palestine Action may act as a clog on the Courts and the mass acts of defiance will continue, according to a spokesperson for Palestine Action, until the proscription is lifted. It may be seen as an attempt to nullify the law by direct action. And in New Zealand, large scale protests are not unknown.