They were among more than 20 activists charged who appeared before Sheriff Cook.
At Edinburgh Sheriff Court on Wednesday, the Crown moved to take the diet of debate to the High Court, citing section 288ZB of the Criminal Procedure (Scotland) Act 1995.
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The section in question allows a court to refer criminal proceedings to the High Court if a compatibility issue has arisen, meaning if it is unclear whether what is happening in the case complies with human rights or other constitutional constraints.
The decision to proscribe Palestine Action as a terror group has been challenged under both Scots law and at the High Court in London on the grounds of freedom of expression and freedom of assembly, articles 10 and 11 of the European Convention on Human Rights.
Moving to remit under 288ZB is, in effect, an acknowledgment that the case in question is not routine and has wider human rights or constitutional significance.
Sheriff Cook, citing the precedent of Thomas O’Leary vs HMA, said that section 288ZB would still require him to hear submissions and posit a solution for the High Court to rule on.
He suspended proceedings until the afternoon to allow other cases to be called in the interim, stating there were “about 27” defendants.
While the Crown had moved to have all the cases referred to the High Court, only in the cases of Ms Allen and Mr Kenrick was the defence arguing on human rights grounds.
It was therefore decided in separate proceedings, in another court room, that their cases would be referred to the High Court, with a procedural hearing to fix a date set for April 15.
In a trial, the Crown would have to prove that the sign in question “arouses reasonable suspicion” to the average person that the person holding it is a member or supporter of Palestine Action, as well as considering Freedom of Expression under the European Convention on Human Rights.
The High Court in London ruled that the decision to proscribe was unlawful, in part because “the nature and scale of Palestine Action’s activities, so far as they comprise acts of terrorism, has not yet reached the level, scale and persistence” would not justify the interference with human rights. The UK Government is appealing the decision.
Other defendants were accused of having worn t-shirts bearing the words ‘Genocide in Palestine, time to take Action’.
Sean Clerkin being spoken to by police in Nelson Mandela Place (Image: Newsquest)
The Herald revealed in December that Counter Terror Policing had advised in August that the sign would not be considered an offence by the Crown Prosecution Service in England and Wales.
The Crown Office and Procurator Fiscal Service (COPFS) in Scotland operates entirely separately from the CPS, however the law applies UK wide and it is likely that the CPS opinion would be taken into account by the courts.
The Herald understands a number of people who were called at Edinburgh Sheriff Court on Wednesday had previously rejected a formal caution.
Defending Andrew Thompson, Pauline Goldsmith, Yvonne Ridley, Sarah McCaffer, Moira McFarlane, Stuart McLeod, Elizabeth Eldridge, Ian MacDonald and Paul Laverty; Mark Harrower sought to fix a date for the diet of debate, where a plea in bar of trial will be entered on the grounds of oppression.
The defence noted that the trial had been continued without plea on more than one occasion, and would keep coming back “every four weeks” without a date being set.
Citing the High Court ruling that the ban on Palestine Action was unlawful, Mr Harrower argued that to continue with the cases is oppressive because it could mean defendants being tried and convicted for something which is not an offence.
Even should the Court of Appeal overturn the verdict of the judicial review, he said, the Crown could re-file charges at a later date.
Asked by Sheriff Cook what remedy he would be seeking, Mr Harrower confirmed he was seeking dismissal of the case.
The advocate for the Crown noted that the ban on Palestine Action remains in force, and that the legal position was “complex and highly unusual”.
Sheriff Cook advised that this could be raised at debate and set a date for April 16 at 10am, with no undertaking to appear for the defendants.
Others appearing accused of the same offence Nicholas Bernie, Catriona Roberts, Eilidh McFadden, Sue Murray, Andrew Stevenson, Francis Nixseaman, Adrian Johnson, Ben Taylor, Emmet Alexander and Janet Fenton, along with Ms Allen and Mr Kenrick who also stand accused of wearing the t-shirts, were given the same date and time with no undertaking to appear.
